Bay' al-Inah

1
Bay' al-Inah BAY AD-DAYN
ISLAMIC LAW OF TRANSACTION (LAW737)

• Presented by
• Siti Nurfudhliha bt Ab. Aziz (2009838386)
• Lily Suryati binti Mohd Jamil (2009831716)

2
QUESTIONThe contracts of bay al-dayn and bay
al-inah remain controversial since they are only
practised in Malaysia. Discuss the views of the
Muslim jurist in this matter.
3
INTRODUCTION

• Malay Muslim society in our country is very
  cautious in involving themselves in riba
  transactions because of the Islamic injunction
  against riba since riba forms the integral part
  of the operation of conventional banks.
• Majority of ulama in the Middle East do not
  agree with concept of the Islamic Accepted Bills
  or Islamic bonds as applied in Malaysia because
  it involves transactions such as bay al-inah and
  bay al-dayn.

4
INTRODUCTION

• In principle, structuring Islamic bonds usually
  involve three main steps
• 1) Bay al- Inah asset securitization Here, two
  sale contracts (a buyback sale) will be applied
  in sequence. That is bay al-inah.
• 2) Issuance of Bond certificates The payment by
  issuer to investors via inah sale is made
  through the issuance of debt certificate (Shahdah
  al-dayn). Technically, this simply means a bond
  sale is underway. However, a bond is only a piece
  of paper evidencing a debt obligation.
• 3) Bond Trading For liquidity purposes, the
  need for trading is vital.

5
Malaysian Islamic Bond

• The BIMB Securities Sdn Bhd.-

Two unacceptable methods
6
BAY AL INAH
7
What is Bay' al-inah?
8
DEFINITION
9
Example1

• It was reported that Aishah was asked about a
  transaction conducted by the slave of Zaid bin
  Arqam.
• Acting on behalf of her master, the slave sold
  another slave of Zaid at 800 dirham in credit to
  Ata' and bought back the slave at 600 dirham in
  cash.
• Ruling the transaction, Aishah said, "it was very
  bad sale and inform Zaid that his conduct has
  eliminated all his rewards for participating in
  jihad with the Prophet if he does not repent''.
• According to the majority of jurists, Aishah
  assertion clearly indicated that bay' al-Inah was
  unlawful contract.

10
Example2

• IBN RUSHD
• For instance, a person said to another person, "I
  lend you 10 dinar for a month and I want 20 dinar
  (in return)". "That is not permissible", said the
  other person. "But you can sell to me this donkey
  for 20 dinar in credit for a month then buy back
  the donkey for 10 dinar in cash."

11
DEFINITION
12
BNMs guidelines on Bai Inah
13
The Operation of Bai Inah
14
The Operation of Bai Inah
15
The Application of Bay' al-Inah
16

• Islamic Credit card
• Malaysia Islamic Bond

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CREDIT CARD BIC by BIMB

1. Buy land worth RM15,000 from BIMB in deferred sale

2. Immediately sell it back to the same party
with RM 11, 000 in cash

• Diagram 1 Bay al-Inah transaction in BIC card
  model

18
Modus Operandi 1st STAGE
19
Modus Operandi 2nd STAGE
20
Islamic Credit Card (BIC)???

• BIMB contends that its additional payment for the
  late settlement is legitimate since it is
  regarded as profit not interest.
• The profit id referred to the difference between
  the sell and the buy back prices
  (RM15000-RM11000) in the bay al-inah transaction
  so executed.
• (As referred to example in Diagram 1) In otr
  words, through the act of selling land to Ali,
  BIMB is actually entitled RM4000 of profit.
• However, the profit is only claimed on Ali when
  he struggles to pay his debt on time.
• The maximum additional payment however is fixed
  (ex RM4000).

21
Islamic Credit Card (BIC)???

• According to BIMB, the fixed max. profit
  demonstrates BIC card main advantage over its
  conventional counterparts.
• This is bcos in the conventional credit card
  system, the interest is perpetuate as it is
  charged compounded until cardholders outstanding
  debts are been settled.

22
MALAYSIA ISLAMIC BOND
Modus Operandi Bay al-Inah Securitization

• Two sale contracts (a buyback sale) will be
  applied in sequence.
• That is bay al-inah spot sale credit sale.

23
Modus Operandi Bay al Inah Securitization
24
Malaysia Islamic Bond???

• Whether MIB constitutes usury or not?

25
Arguments for the validity of Bay' al-Inah
26
INTRODUCTION

• Most ulama in their opinions stated that Bay'
  al-inah is not valid (haram) because it is a
  device to legitimize riba .
• However, Hanafi of the opinion that Bay' al-inah
  is only permissible if such transaction involving
  third party.

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28
ShafiI Bay' al-Inah is HALAL

• According to Shafii school such sales are to be
  allowed because, in the words of Imam ShafiI,
  contracts are valid (Sahih) by the external
  evidence that they were properly concluded
• the unlawful intention (niyya or qasd) of the
  parties is immaterial, it does not invalidate
  their act, unless expressed in that act.
• Al-Shafii illustrated his teachings with
  following example, which concerns the marriage of
  a man who intends to keep his wife for only a
  short period of time. That marriage is valid
  whereas a mutaa marriage is invalid (Batil).
• The Shafii's considered that the intention of the
  parties is taken into account only when the
  invalid intention is explicitly mentioned in the
  contract.

29
Maliki Hanbali

• The Maliki and Hanbali jurists hold that the
  contract of Inah are not valid (Sahih) because,
  according to them
• the motive of the parties to the contract
  determines the legality or illegality of the
  contracts,
• and in the sale under consideration the motive of
  the parties is illegal and,
• therefore, the sales are not valid because they
  constitutes a legal device (Hilah) to get a loan
  with interest which should be averted at all
  costs according to the Shariah.

30

• Ibn Qayyim
• states that intention influences legal acts
• the formality of legal act can be the same but
  end results depend on the intention.

• Rasulullah s.a.w
• says
• Deeds are judged according to the intentions,
• and every human being will have to take
  responsibility for what he intended.
• Sahih al-Bukhari

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(No Transcript)
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• It is clear in the opinions of above noted
  jurists that the intentions are to be taken into
  account in relation to legal acts as they are in
  the matters of faith, Islam does not tell Muslims
  to define an objective, and then use what means
  they observe fit in order to attain it.
• Instead, it tells them that if the means are
  correct, the ends will look after themselves.
• Islam does not teach us to overcome usury by
  competing with usurer at his own game.

33
Bay' al inah is INVALID
34
Bay' al inah is INVALID

• Wasil b. Ata is reported to have said that a
  right judgment can be arrived at through four
  sources
• the express word of the Book,
• authentic Hadith,
• Qiyas and
• consensus of the ulama community

• Hence, Bay' al-inah, is a violation of the
  established consensus. Since this sort of sale
  agreement constitutes the taking of usurious
  interest as most jurists hold that such
  transaction should be forbidden.

35
Bay' al inah is INVALID
36
Bay' al inah is INVALID

• al ShafiIs method of determining the validity of
  any contract by its formal evidence that they are
  legally concluded, cannot be cancelled on account
  of the intention of the parties, although he had
  to recognize such intention as forbidden (Haram)
  but the contract remains valid unless the
  intention expressed in the contract.

37
Bay' al inah is INVALID

• The Shafii may, thus permits contracts because
  its legal preconditions are fulfilled, but
  forbids the transacting act of the parties when
  it conflicts with Shariah principle.

38
Bay' al inah is INVALID

• The following example can illustrate his teaching.

39
Bay' al inah is INVALID
Thus, it is forbidden as it is based
on unjustified enrichment (fadl mal bil a iwad)
or receiving a monetary advantage without
giving a countervalue.
40
Malaysia Islamic Bond???

• The use of legal device is therefore an evidence
  that the niyyah or intention factor is undermined
  or made secondary in the securitization process
  of Islamic bonds in Malaysia.
• It is apparently clear that most underlying
  assets used in the Malaysian Islamic bond
  securitization have no direct relation with the
  actual project itself.
• These assets were simply collaterals, that serve
  as guarantees to the debt issued.
• To retain the basic structure of traditional
  bonds in Islamic finance, that is providing fixed
  return to investors, practitioners and the
  relevant Shariah experts may have wrongly
  applied Shariah laws, which implies now that the
  legitimacy of Islamic bonds issued using Bay'
  al-inah is suppose.

41
Justifications of Msia Shariah Scholars

• This justification indicates that the shari'ah
  scholars try to practice independent ijtihad. In
  solving fiqh problems of the Islamic banking,
  they will refer directly to the primary and the
  secondary sources of Islamic law.
• As generally known, the primary sources refer to
  the verses of the Qur"an and the Sunnah of the
  Prophet (pubh), while the secondary sources refer
  to ijma' (consensus), qiyas (analogy), istihsan
  (legal preferences), 'urf (custom) and etc.

42
Justifications of Msia Shariah Scholars

• They will also examine the prominent classical
  jurists' opinions but will not blindly restrict
  to them.
• This method contradicts their approach when
  judging the matrimonial, inheritance,
  administration of mosque and waqf (endowment)
  cases where decisions are usually confined to the
  rulings of the Shafi'is school.

43
Justifications of Msia Shariah Scholars

• In accepting the maslahah argument, the local
  shari'ah scholars adopt 'form over substance'
  approach.
• The approach focuses on changing the legal
  terminology rather that the essence of the
  conventional banking products.
• As evident in the case of bay' al-Inah, the
  contract is analogous to usurious transaction.

44
Justifications of Msia Shariah Scholars

• Financing products created through bay' al-Inah
  economically has similar effects to the
  conventional banking loans.
• Perhaps the local scholars' primary concern in
  adopting such an approach is to demonstrate the
  usefulness of various Islamic commercial
  contracts in today's modern world.
• By adopting the contracts of bay' al-Inah, bay'
  murabahah, BBA and etc, they wish to prove that
  Islamic commercial law has solution to the riba
  problem even in the complicated banking
  environment
• However, critics of the Islamic banking disagree
  with the approach. Its implementation is seen as
  a kind of deception which manipulates the
  religious notion of Muslims for banks' economic
  profit.

45
Justifications of Msia Shariah Scholars

• However, critics of the Islamic banking disagree
  with the approach.
• Its implementation is seen as a kind of deception
  which manipulates the religious notion of Muslims
  for banks' economic profit.
• The banking products created through this
  approach look 'Islamic' in their appearance but
  maintain the element of riba in their fundamental
  nature. Therefore, the objective (maqasid) of
  Islamic banking will never be achieved

46

• Al-Qardawi states concerning Bay' al-inah, that
  it is a clear case of usury and the device

why should we practice transaction which contains
elements of devices while we are in position to
have a clear and apparent alternative
transaction? Furthermore, muamalat which
contains elements of device deviates form the
true objective of Shariah.
47
BAY AL-DAYN
48
DEFINITION OF BAY AL-DAYN

• An Arabic term sale of debt bay (sale)
  dayn (debt) sale and purchase transaction of a
  quality debt.
• refers to debt financing, i.e. the provision of
  financial resources required for production,
  commerce and services by way of sale/purchase of
  trade documents and papers.
• Article 158 of Majalah al-ahkam al-adliyah dayn
  (either monetary, or a commodity, i.e food or
  metal) the thing due i.e the amount of money
  owed by a certain debtor.

49
NATURE OF BAY AL-DAYN

• Applicable to instruments such as Islamic
• Accepted Bills (IABs).
• IAB was introduced in 1991 to provide a shariah
  compliant instrument to conventional banking,
  particularly for trade financing .
• Formulated on the Islamic principles of
  Al-Murabahah (deferred lump-sum sale or
  cost-plus).
• The secondary market trading of the instrument is
  based on Bai ad-Dayn (debt-trading).

50
NATURE OF BAY AL-DAYN

• There are two types of financing under the IAB
  facility which apply the concept of bay al-dayn,
  namely-
• i) Trade Financing/ Imports
• ii) Trade Financing/ Exports

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NATURE OF BAY AL-DAYN

• i) Trade Financing/ Imports
• The Islamic bank appoints the customer as its
  purchasing agent for the underlying goods.
• the customer purchases the needed goods from the
  seller (foreign exporter) on behalf of the bank,
  which pays the seller /exporter and resells the
  goods to the customer at a marked up price.
• The customer is typically allowed a deferred
  payment
• Since, the sale of goods by the bank to the
  customer on deferred payment constitutes a debt,
  the debt is securitised in the form of a bill of
  exchange drawn by the bank on and the customer
  for the full amount of the selling price.
• The bank can then decide to sell the IAB to a
  third party on a Bai al-dayn basis.

52
NATURE OF BAY AL-DAYN

• ii) Trade Financing/ Exports
• An exporter, with an approved IAB facility,
  prepares the export documentation as required
  under the sale contract or letter of credit.
• The export documents, shall be sent to the
  importer's bank.
• The exporter draws on the foreign commercial bank
  a new bill of exchange as a substitute bill and
  this will be the IAB.
• The bank shall purchase the IAB at a mutually
  agreed price using the concept of Bai al-Dayn and
  the proceeds will be credited to the exporter's
  account.

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CONTROVERSIES IN BAY AL-DAYN

• Islam permits debt - get out from financial
  hardship.
• -only for charity purposes between the rich with
  the unable
• to tie up the brotherhood and promote
  helpfullness.
• The creditor cannot consider the lending of the
  money (debt) to the debtor as a source of income
  and to get profit from the riba.
• Islam very appreciates the creditor who does not
  ask or expect more than what he have gives and
  only hopes for a high rate of reward from Allah
• If the debtor is in a difficulty, grant him
  time till it is easy for him to repay. But if ye
  remit it by way of charity, that is best for you
  if ye only knew. (Al-Baqarah280)
• The application of debt seems to be complicated
  due to modern financial development the debates
  and arguments is still in the air about this
  product of bay al-dayn.

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CONTROVERSIES IN BAY AL-DAYN

• 1)whether Islamic rules permit the sale of debt.
• 2)whether the debt can be sold to a third party
  other than to the debtor.
• 3)whether the debt can be sold in deferred
  payment.
• 4)whether the value of the debt sold to the buyer
  can be different from the value of the debt given
  to the debtor.

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1)The Legality of Sale of Debt
56
Justification of Malaysian Shariah Scholar

• On 21st August 1996, The Malaysian Securities
  Commission Shariah Advisory Council passed a
  resolution - accept the principle of bay al-dayn
  as one of the concepts for developing Islamic
  capital market instruments.
• Reason Islamic jurists allowed this concept
  subject to certain conditions for instance there
  is a transparent regulatory system in the capital
  market to safeguard the maslahah (public
  interest) of the market

57
Justification of Malaysian Shariah Scholar

• Some scholars argue that bay al-dayn is
  restricted to a case where the debt is created
  through the sale of a commodity.
• In this case, they say, the debt represents the
  sold commodity and its sale may be taken as the
  sale of a commodity.
• The argument is devoid of force.
• Once the commodity is sold, its ownership is
  passed on to the purchaser and it is no longer
  owned by the seller.
• What the seller owns is nothing other than money.
  Therefore if he sells the debt, it is no more
  than the sale of money and it cannot be termed by
  any stretch of imagination as the sale of the
  commodity.

58
Opinion of Muslim scholars

• The Hanafinot permitting bay al-dayn
• - the debt is in the form of mal hukmi
  (intangible property)
• - the buyer takes great risk because he cannot
  own the item bought and the seller can not
  deliver the item sold.
• The Shafii allows the selling of debt to a
  third party if the dayn was mustaqir (guaranteed)
  and was sold in exchange for goods that must be
  delivered immediately. The debt is sold it must
  be paid in cash or tangible assets as agreed.

59
Opinion of Muslim scholars

• The Malikis allow bay al-dayn subject to certain
  conditions as follows
• a) Expediting the payment
• b) Debtor present at the place of sale
• c) Debtor confirms the debt
• d) Debtor belongs to the group that is bound by
  law so that he is able to redeem his debt
• e) Payment is not the same type as dayn, and it
  fit so, and the rate should be the same to avoid
  riba
• f) The debt cannot be created from the sale of
  currency (gold and silver) to be delivered in
  future date
• g) The dayn should be goods that are saleable
  even before they are received. This is to ensure
  that the dayn is not of the food type which
  cannot be traded before qabadh occur and
• h) There should be no enmity between the buyer
  and seller, which can create difficulties to the
  debtor.

60
Opinion of Muslim scholars

• Zahiris the debt should not be sold.
• hadith of the Prophet Muhammad s.a.w.
• Do not sell gold for gold except if they are
  the same, and do not sell silver for silver
  except if they are same, and do not sell that
  which is absent for that which is present.
• prohibits the selling of debts because the dayn
  will always be an absent one, while its price can
  either be present or absent.

61
Opinion of Muslim scholars

• The consensus among fuqaha is that bay al-dayn
  is prohibited either be sold to the debtor or to
  a third party. This is based on the hadith
• ?? ????? ??? ????? ???? ???? ??? ?? ??? ???? ??
  ?? ??? ?? (???? ??? ???)
• Prophet (pbuh) prohibits sale of debt with debt.
  (kal bi kal).
• Ibn Rusyd nasiah from this two things are
  prohibited according to the consensus, either on
  the subject matter or on the liability because
  they are included in the sale of ???? ?? ?? ????
  .
• From the above explanation, it is a consensus
  among fuqaha that bay al-dayn is prohibited.

62
Opinion of Muslim scholars

• Ibnu Qayyim ?????? is a transaction where the
  delivery is delayed while the subject matter
  (ayn) is not in his possession
• Do not sell a thing which is not in your
  possession." HR. Abu Dawud, an-Nasai, Ibn
  Majah, dan at-Tirmidzi.
• This situation can raise fraud and great disaster
  in muamalat.

63
2)Sale of Debt to a Third Party
64
JustificatioN of malaysian shariah scholar

• Ismail Mahayudin from Bank Islam (Institute of
  Research and Training Sdn. Bhd.) the sale of
  debt can be sold to a third party.
• Bay al-dayn is only a short-term financing
  facility whereby the bank purchases the
  customers rights to the debt, which is normally
  securitized. The purchase price less Banks
  charges will be credited into the customers
  account. The purchase price of the al-dayn will
  be agreed upon between the customers and the
  bank. This al-dayn may then sell to a third party
  at a discount.

65
Opinion of Muslim scholars

• Shafiis and Hanbalis like Ibn al-Qayyim the
  creditor has the right to sell only confirmed
  debt to the debtor or to a third party because he
  is allowed to give it to the debtor and to a
  third party too. This opinion is based on the
  following arguments
• i. There is no authentic source that prohibits
  such kinds of
• selling or giving.Thus, it should be
  allowed and permitted
• ii. Creditor has full right on possession and
  full right to sell it
• to a third party
• iii. Based on a legal maxim, it is allowed,
  which states that
• all transactions are permissible until they
  are proven non-
• permissible by an authentic source.
  So,since there is no
• authentic source prohibiting this
  transaction, then, it
• should be allowed.

66
Opinion of Muslim scholars

• Most of Hanafis, Hanbalis and Shafis jurists and
  Zahiris not allowed to sell al Dayn to
  non-debtor or a third party at all. (the
  forbidden sale of al Kali Bil al Kali, sale of a
  Gharar, sale which the seller does not possess)
• These rules are attributed to the Prophets (SAW)
  prohibition
• Do not sell what you do not possess

67
Opinion of Muslim scholars

• Furthermore, the selling of al-dayn give rise to
  the occurrence of Riba between the two debts at
  the level of inability of the buyer from
  possessing what he bought, as it is not permitted
  that the buyer sells before actual receipt of the
  purchased item.

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3) SALE OF DEBT IN DEFERRED PAYMENT
69

• The Shariah permits the selling of the debt by
  its equivalent in quantity and time of maturity
  by way of Hawalah.
• All Schools of Islamic law accept provided it is
  paid in full and thus gives no benefit to the
  purchaser.
• Rationale financial transactions involving debt
  should never allow for a payment against the
  length of the period of the loan, as this would
  be regarded as riba or Bay al-Kali Bil Kali
  which is prohibited by the Prophet (S.A.W).
• Thus Bay al-dayn for deffered payment is not
  allowed.

70

• the Islamic Fiqh Academy of Jeddah has
  re-discussed this issue sale of debt is
  prohibited because sale of debts to debtors with
  a deferred payment plan exceeding debt amount
  Riba al-Fadl and Riba an-Nasiah. (Jadwalah
  ad-Dayn)

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4) Sale of Debt with Different Value
72
Justification of Malaysian Shariah Scholar

• Securities Commission Shariah Advisory Council
  Resolution although the bay al-dayn is
  permissibble but it is restricted to a case where
  the debt is created through a sale of a
  commodity.
• the debt represents the sold commodity and its
  sale may be taken as a sale of the commodity by
  considering the conditions set by Maliki mazhab
  which is payment is not of the same type as
  dayn, and if it is so, the rate should be the
  same to avoid riba.
• In this context of the sale of securitized debt,
  the characteristics of securities differentiate
  it from currency, and hence, it is not bound by
  the conditions for exchanging of Ribawi goods,
  therefore, selling debt which is represented
  non-Ribawi asset is permissible to be discounted.

73
Opinion of Muslim scholars

• The traditional Muslim jurists (fuqahâ)
  bayal-dayn with discount is not allowed in
  Shariah.
• The overwhelming majority of the contemporary
  Muslim scholars are of the same view.
• However, some scholars of Malaysia have allowed
  this kind of sale.
• They normally refer to the ruling of Shâfiie
  school wherein it is held that the sale of debt
  is allowed,
• but they did not pay attention to the fact that
  the Shâfiie jurists have allowed it only in a
  case where a debt is sold at its par value.

74
Opinion of Muslim scholars

• Where the price paid for a debt is not the same
  as the face value of that debt riba al-Nasiah
  and is therefore prohibited.
• "And whatever riba you give so that it may
  increase in the wealth of the people, it does not
  increase with Allah." Ar-Rum 3039
• Prophet Muhammad (S.A.W) said That every loan
  entailing benefit is usury

75
Opinion of Muslim scholars

• the Islamic Fiqh Academy of Jeddah sale of debt
  is prohibited because sale of debts to a third
  party with a deferred payment plan whether the
  debt is paid with the same type of kind or not
  sale of debt with debt  (bai al-kali bi al-Kali
  which is clearly prohibited by Prophet Muhammad).
• commercial papers such as cheques, promissory
  notes and bill of exchange cannot be sold at a
  discount because there is element of Riba.
• it is not allowed to deal, issue, distribute or
  trade with Riba based bonds because the element
  of Riba is present.
• It is not allowed to deal with debt notes in the
  secondary market as it involves discounts and
  sale of debts to third parties which has Riba
  elements.

76
Opinion of Muslim scholars

• Mainstream Islamic scholars the possibility of
  earning profit by confirming that any sale of
  debt or transfer of debt (Hawalat-al-dayn) must
  be at face value.
• when the bank buys the instrument of debt
  (shahada-al-dayn) from the original buyer, it is
  not entitled to any discount.
• Doors of riba are closed shut by disallowing any
  difference between what it pays (purchase price
  of the instrument) and what it receives on
  maturity (its maturity value).
• Notwithstanding the clear verdict against such
  transaction, some Islamic banks have been
  offering Islamic bill discounting products.

77
Opinion of Muslim scholars

• They essentially treat debt as any other physical
  asset that can be traded at a negotiated price.
  In fact, the prohibition of Bay-al-dayn is a
  logical consequence of the prohibition of "riba"
  or interest.
• A "debt" receivable in monetary terms corresponds
  to money, and every transaction where money is
  exchanged from the same denomination of money,
  the price must be at par value.
• Any increase or decrease from one side is
  tantamount to "riba" and can never be allowed in
  Shariah.

78
CONCLUSION

• This is the very reason for the controversy about
  the legitimacy of Malaysian Islamic bonds which
  renders it to be unacceptable by individual
  Islamic jurists and institutions outside Malaysia
  and the Middle-Eastern countries.
• Islam does not allow the legal devices to be
  treated as a justification for transactions which
  Islam regards unjust and against Islamic belief.
• In Malaysia, the role of the Shariah Advisory
  Council or Shariah advisors in product
  development and product approval is not at the
  initial stage but in the middle or at the end of
  the process.
• Most of the financial institutions prefer to
  present their almost-ready product proposals to
  the SAC for deliberation ehere they may endorse
  the product as it is, or may suggest some
  changes, be it minor or major.

79
CONCLUSION

• The common methodology of product development is
  simply based on a few fatwas which are very much
  peculiar to a specific school of law or perhaps
  to a particular jurist though this has no support
  from the overwhelming majority of jurists.
• The objective of this methodology is merely to
  seek some legal justification or authority to
  reinforce the Islamicity of some new products
  that are deemed to be feasible and viable in
  modern Islamic banking and finance.
• Concern is never given as to whether this fatwa
  is strong and a preferred one in the Islamic law
  discourse (rajih).

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THE END -SYUKRAN JAZILAN ) -