Investment is the action of deploying funds with the intention and expectation that they will earn a positive return for the owner (Brokington 1986, p.68). Funds may be invested in either real assets or financial assets. When resources are used for purchasing fixed and current assets in a production process or for a trading purpose, then it can be termed as real investment. The establishment of a factory or the purchase of raw materials and machinery for production purposes are examples in point. On the other hand, the purchase of a legal right to receive income in the form of capital gains or dividends would be indicative of financial investments. Specific examples of financial investments are: deposits of money in a bank account, the purchase of Mudaraba Savings Bonds or stock in a company. Ultimately, the savings of investors in financial assets are invested by the respective company into real assets in the form of the expansion of plant and equipment. Since Islam condemns hoarding savings and a 2.5 percent annual tax (Zakat) is imposed on savings, the owner of excess savings, if he is unable to invest in real assets, has no option but to invest his savings in financial assets.

 

When money is deposited with an Islamic Bank, the bank, in turn, makes investments in different forms approved by the Islamic Shariah with the intent to earn a profit. Not only a bank, but also an individual or organization can use Islamic modes of investment to earn profits for wealth maximization. Some popular modes of Islamic Investment are discussed below. A comparison is also attempted between the Islamic Modes of Finance and these of conventional banks. 

A. ISLAMIC MODES FINANCE

At the beginning it is better to give a clear definition of "Islamic Modes of Finance". The word "Modes" literally means "methods", or in other words, it refers to systematic and detailed rules, stipulations and steps to be followed for accomplishing a specific thing. The thing that needs to be accomplished in this context is, however, the subject matter of each of the said modes, i.e. any of the different types of investment activities (trade, leasing, real estate, manufacturing, agriculture, agriculture production etc., or, using Shariah expressions Murabaha, Mudaraba, Musharaka, Ijarah, Istisna, etc.). The word "Finance" in one of its different meanings refers to the supply of money capital or credit, provided by either a person (household), or an organization (private or public - financial or non financial). The word "Islamic" is inserted in the above expression to restrict the type of rules that can govern different modes of finance to the Shariah rules. A complete definition for the term "Islamic Modes of Finance"' may be given as follows:

 

"The systematic and detailed Shariah rules that govern the contractual relationship of an investment activity that can be applied for attracting money capital" (Fahmy & Sarkar). 

1. BAI-MURABAHA

1.1 Meaning of Murabaha

The terms "Bai-Murabaha" have been derived from Arabic words Bai and Ribhun. The word 'Bai' means purchase and sale and the word 'Ribhun' means an agreed upon profit. "Bai-Murabaha" means sale for an agreed upon profit. Bai-Murabaha may be defined as a contract between a buyer and a seller under which the seller sells certain specific goods permissible under Islamic Shariah and the Law of the land to the buyer at a cost plus an agreed upon profit payable today or on some date in the future in lump-sum or by installments. The profit may be either a fixed sum or based on a percentage of the price of the goods.  

1.2 Types of Murabaha

In respect of dealing parties Bai-Murabaha may be of two types (IBBL 1986, pp.1-2):

-          Ordinary Bai-Murabaha, and

-          Bai-Murabaha order on and Promise.

Ordinary Bai-Murabaha is a direct transaction between a buyer and a seller.  Here, the seller is an ordinary trader who purchases goods from the market in the hope of selling these goods to another party for a profit.  In this case, the seller undertakes the entire risk of his capital investment in the goods purchased. Whether or not he earns a profit depends on his ability to find a buyer for the merchandise he has acquired. 

 

Bai-Murabaha order on and Promise involves three parties - the buyer, the seller and the bank. Under this arrangement, the bank acts as an intermediary trader between the buyer and the seller. In other words, upon receipt of an order and agreement to purchase a certain product from the buyer, the bank will purchase the product from the seller to fulfill the order.

 

However, it should be noted here that the Islamic Bank acts as a financier in this transaction.  This is the case, not in the sense that the bank finances the purchase of goods by the consumers; rather it is a financier by deferring payment to the seller of the product. Thus, there is a chance that this transaction could resemble nothing more than a loan for which interest (Riba) is earned, which is contrary to Islamic beliefs.

 

Therefore, to avoid this potential misuse of the Bai-Murabaha relationship, the bank should purchase the goods on behalf of the bank from the seller and sell the goods to the buyer, receiving payment on behalf of the bank as well. In this way, the profits generated by the transaction to each of the parties involved cannot be misconstrued as interest or (Riba) profits.

There are some important features of Bai-Murabaha as given below.

1.3 Important Features of Murabaha

1. A client can make an offer to purchase particular goods from the bank for a specified agreed upon price, including the cost of the goods plus a profit.

2. A client can make the promise to purchase from the bank, that is, he is either to satisfy the promise or to indemnify any losses incurred from the breaking the promise without excuse.

3. It is permissible to take cash/collateral security to guarantee the implementation of the promise or to indemnify any losses that may result.

4. Documentation of the debt resulting from Bai-Murabaha by a Guarantor, or a mortgage, or both like any other debt is permissible. Mortgage/Guarantee/Cash Security may be obtained prior to the signing of the Agreement or at the time of signing the Agreement.

5. Stock and availability of goods is a basic condition for signing a Bai-Murabaha Agreement. Therefore, the bank must purchase the goods in accordance with the specifications of the client, thereby taking ownership of the goods before signing the Bai-Murabaha agreement with the client.

6. Upon acquiring the goods, the bank assumes the risk of ownership. In other words, the bank is responsible for damages, defects, and /or spoilage to the merchandise until such time that it is actually delivered to the buyer.

7. The bank must deliver the goods to the client at the date, time, and place specified in the contract.

8. The bank sells the goods at a price above the cost to obtain a profit.  The sale price that is charged by the bank is agreed upon in the Bai-Murabaha.  The profit can be stated in terms of a flat dollar amount or on a percentage of the purchase price.  If a percentage is used, the percentage shall never be expressed in terms of time, in order to avoid confusion that the price is a form of interest (Riba), which is not allowed.

9. The price agreed to in the agreement is binding on both parties.

10. It is permissible for the bank to contract with a third party to buy and receive the goods on its behalf. This agreement must be a separate contract.

These features make Bai-Murabaha distinctive from all other modes of Islamic Investment. There are certain steps to accomplish a deal of Bai-Murabaha as shown below (ABIIB 1995, p.12). 

1.4 Steps of Bai-Murabaha

First Step: The client submits a proposal regarding his requirements of the bank. The client sends a proposal with the specifications of the commodity to be acquired from the bank. The proposal also indicates details regarding the date, time and place of delivery as well as price and form of payment information. The bank responds by sending a counter proposal either accepting the buyer's price or stipulating a different price. 

 

Second Step:     The client promises to buy the commodity from the bank on a Bai-Murabaha basis, for the stipulated price. The bank accepts the order and establishes the terms and conditions of the transaction. 

 

Third Step: The bank informs the client (ultimate buyer) of its approval of the agreement to purchase.  The bank may pay for the goods immediately or in accordance with the agreement.

 

The seller expresses its approval to the sale and sends the invoice(s).

 

Fourth Step: The two parties (the bank and the client) sign the Bai-Murabaha Sale contract according to the agreement to purchase.

 

Fifth Step: The Bank authorizes the client or its nominee to receive the commodity

 

The seller   sends the commodity to the place of delivery agreed upon. The client undertakes the receipt of the commodity in its capacity as legal representative and notifies the bank of the execution of the proxy.

The Bai-Murabaha has some legal rules. These rules are mentioned below (Ibid, pp.14-16).

1.5 Rules of Bai-Murabaha

1. It is permissible for the client to offer to purchase a particular commodity, deciding its specifications and committing itself to buy it on Murabaha for the cost plus the agreed upon profit.

2. It is permissible that the mutual agreement shall contain various conditions agreed upon by the two parties, especially with respect to the place of delivery, the payment of a cash security to guarantee the implementation of the operation and the method of payment.

3. It is permissible to stipulate the binding nature of the promise to purchase.  Thus, the agreement can only be satisfied by either fulfilling the promise to purchase or by indemnifying the bank for any losses incurred if the promise to purchase is not fulfilled.

4. It is a condition that the bank purchases the requested commodity (first purchase contract) before selling it on Murabaha to the buyer. The contract in the first purchase must be settled, in principle, between the source seller and the bank.

5. It is permissible for the bank to authorize a second party including the buyer to receive the commodity on its behalf. This authorization must be in a separate contract, particularly if the buyer is going to receive the goods on behalf of the bank. This is necessary to avoid any conflicts with the ensuing Murabaha sale.  

6. Once the bank takes ownership of the goods, it is responsible for any damages or defects. Thus, if the goods are damaged, the bank is liable and must repair the damage prior to delivering the goods to the purchaser.

7. It is a condition that the Bai-Murabaha contract be drawn at the last phase. That is after the promise to purchase and the purchase of the commodity in the name of the bank and receipt of the commodity directly by the bank or through an agent.

8. The legal rules of Bai-Murabaha must be observed in drawing the contract of the Murabaha sale connected with a promise to purchase.  Particularly concerning the issue of the transparency of the cost of the first purchase and the amount of profit because discrepancies lead to disputes, which may invalidate the contract.

9. It is permissible to document the debt resulting from Bai-Murabaha by a guarantor or a mortgage, like any other sale on credit. Further, it is permissible that the mortgage accompanies the contract, because it is possible to take a mortgage on actual debt as well as promised debt before it is realized.  However, the mortgage shall only be in effect if the debt is actually incurred.

The areas of application of Bai-Murabaha are discussed below.

1.6 Application of Bai-Murabaha

            Murabaha is the most frequently used form of finance in Islamic banking throughout the world. It is suitable for financing the different investment activities of customers with regard to the manufacturing of finished goods, procurement of raw materials, machinery, and other required plant and equipment purchases.  

2. MUSHARAKA (PARTNERSHIP)

2.1 Meaning of Musharaka

The word Musharaka is derived from the Arabic word Sharikah meaning partnership. Islamic jurists point out that the legality and permissibility of Musharaka is based on the injunctions of the Qura'n, Sunnah, and Ijma (consensus) of the scholars.  It may be noted that Islamic banks are inclined to use various forms of Shariakt-al-Inan because of its built-in flexibility. At an Islamic bank, a typical Musharaka transaction may be conducted in the following manner.

 

One, two or more entrepreneurs approach an Islamic bank to request the financing required for a project.  The bank, along with other partners, provides the necessary capital for the project. All partners, including the bank, have the right to participate in the project. They can also waive this right. The profits are to be distributed according to an agreed ratio, which need not be the same as the capital proportion. However, losses are shared in exactly the same proportion in which the different partners have provided the finance for the project (Hussain 1986, p.61). 

2.2 Types of Musharaka

      Musharaka may take two forms:

i)        Permanent Musharaka and

ii)       Diminishing Musharaka.

  These are discussed below (ABIIB 1995). 

Permanent Musharaka

In this case, the bank participates in the equity of a company and receives an annual share of the profits on a pre-rate basis. The period of termination of the contract is not specified. This financing technique is also referred to as continued Musharaka.

 

The contributions of the partners under this mode may be equal or unequal percentages of capital for the purpose of establishing a new income-generating project or to participate in an existing one. In this arrangement, each participant owns a permanent share in the capital structure and receives his share of the profits accordingly. This type of a partnership is intended to continue until the company is dissolved.  However, one can exit the partnership by selling his share of the capital to another investor. 

 

Permanent Musharaka is used by Islamic Banks in many income generating projects.  They can provide financing to their customers, in exchange for ownership and profit sharing in the proportion agreed upon by both parties.  In addition, the bank may leave the responsibility of management to the customer-partner and retain the right of supervision and follow up.

 

The three steps to establishing Permanent Musharaka are discussed below.

 

One - Partnership in Capital: The bank tenders part of the capital required in its capacity as a partner and authorizes the customer/partner to manage the project. The Partner tenders part of the capital required for the project and is entrusted with what he holds from the bank funds.

 

Two - Results of the Projects: The intent of the project is growth. However, the project may be profitable or it may loss money.

 

Three - The Distribution of wealth accrued from the Project: In the event a loss is incurred, each partner bears part of the loss proportionate to his share in capital. In the event the venture is profitable, earnings are divided between the two parties (the bank and the partner) in accordance with the agreement.

The following is a discussion of those legal rules that apply to the Musharaka relationship:

Rules for Permanent Musharaka

1. It is a condition that the capital provided by each partner is specific, existent and easily accessible.  It is inappropriate to establish a company with borrowed money, for the purpose of profit. 

2. It is permissible for partners to have unequal ownership in the project. The percent of ownership is set forth in the agreement. 

3. It is a condition that the capital of the company is money and valuables. Some of the jurists permit contributing merchandise as invested capital. However, the merchandise must be evaluated, and the value agreed upon by all parties.  Once the value has been established, it is counted as capital and stipulated in the contract as such. 

4. It is impermissible to impose conditions forbidding one of the partners from work.  The company is built on honor and each partner implicitly permits and gives power of attorney to the other partner(s) to dispose of and work with capital as is deemed necessary to conduct business. However, it is permissible for one partner to have full responsibility for the operations of the company, provided he is granted this authority by the other partners. 

5. A partner is a trustee of company funds in his possession and is held responsible for their proper use. It is permissible to take a mortgage or a guarantee against company assets, but it is impermissible to take security for profit or capital.

6. It is a condition that each partners' share of the profits be known to avoid uncertainty.  Also, it is required that the ownership interest be in percentage terms and not a fixed sum, because this would violate the requirements of a partnership. 

7. In principle, profit must be divided among partners in ratios proportionate to their shares in capital but some of the jurists permit variation in profit shares, so long as it is agreed to by all of the partners. This may be the case when one of the partners is more dexterous and more diligent and does not agree to parity, so variation in the sharing of profits becomes necessary.  

8. In principle, a partnership is a permissible and non-binding contract.  Thus, if a partner wishes, he could rescind the agreement provided that this occurs with the knowledge of the other partner or partners.  Rescinding the agreement without the knowledge of the other partners' prejudices the rescinding partner's interest. On the other hand, some of the jurists take the view that the partnership contract is binding up to the liquidation of capital or the accomplishment of the job accepted at the contract.

Application of Permanent Musharaka

 

Permanent Musharaka is helpful in providing financing for large investments in modern economic activities.  Islamic banks can engage in Musharaka partnerships for new or established companies and activities.  Islamic banks may become active partners in determining the methods of production cost control, marketing, and other day-to-day operations of a company to ensure the objectives of the company are met.  On the other hand, they can also choose to either directly supervise or simply follow up on the overall activities of the firm. As part of the agreement, Islamic banks will share in both profits and losses with its partners or clients in operations of the business.   

 

Diminishing Musharaka

 

Diminishing or Digressive Musharaka is a special form of Musharaka, which ultimately culminates in the ownership of the asset or the project by the client. It operates in the following manner.

 

The Bank participates as a financial partner, in full or in part, in a project with a given income forecast. An agreement is signed by the partner and the bank, which stipulates each party's share of the profits.   However, the agreement also provides payment of a portion of the net income of the project as repayment of the principal financed by the bank. The partner is entitled to keep the rest. In this way, the bank's share of the equity is progressively reduced and the partner eventually becomes the full owner.

 

When the bank enters into a Diminishing Musharaka its intention is not to stay in the partnership until the company is dissolved. In this type of partnership, the bank agrees to accept payment on an installment basis or in one lump sum, an amount necessary to buy the bank's partnership interest. In this way, as the bank receives payments over and above it's share in partnership profits, it's partnership interest reduces until it is completely bought out of the partnership.

 

After the discharge, the bank withdraws it claims from the firm and it becomes the property of the partner.  The decreasing partnership arrangement is an Islamic bank innovation.  It differs from the permanent partnership only in continuity.  It appears that there are four steps of the diminishing partnership. Those are mentioned below.

 

Steps of Diminishing Musharaka

1. Participation in Capital: The bank - tenders part of the capital required for the project in its capacity as a participant and agrees with the customer/partner on a specific method of gradually selling its share in capital back to the partner.

2. The partner - tenders part of the capital required for the project and agrees to pay the agreed upon amount in return for the ultimate full ownership of the business.

3. Results of the Projects: The intent of the project is capital growth. The project may be profitable or lose money.

4. The distribution of the Wealth accrued from the Projects: In the event of loss each partner bears his share in the loss in his exact proportionate share of capital.  In the event that the project is successful, profits are distributed between the two partners (the bank and the customer) in accordance with the agreement.

5. The bank sells its Share of Capital: The bank expresses its readiness, in accordance with the agreement, to sell a specific percentage of its share of capital.

6. The partner pays the price of that percentage of capital to the bank and the ownership is transferred to the partner.

This process continues until the bank has been fully compensated for it's capital share of the business. In this way the bank has its principal returned plus the profit earned during the partnership and vice versa.

 

In the first Conference of the Islamic Banks in Dubai, the conferees studied the topic of partnership ending with ownership (decreasing partnership) and they decided that this type of business relationship may take one of the following forms.

 

The First Form:  In this form, the bank agrees with the customer on the share of capital and the conditions of partnership. The Conference decided that the bank should sell its shares to the customer after the completion of the partnership. Furthermore, they determined that the selling of the banks interest to the partner should be done under an independent contract. 

 

The Second Form:  In this form, the bank participates in financing all or part of the capital requirements in exchange for sharing in the prospective earnings. In addition, the bank gains the right to retain the remainder of the income for the purpose of applying it towards the capital provided by the bank. 

 

The Third Form:  In this form, the bank and partner's ownership is determined by stocks comprising the total value of the asset (real estate). Each partner, (the bank and the customer) gets its proportionate share of the earnings accrued from the real property. On an annual basis , the partner may purchase a  prescribed number of the bank's shares until such time that the partner becomes the sole owner of the real property.

There are some legal rules for diminishing Musharaka as given below.

 

Rules for Diminishing Musharaka

 

In addition to all the legal rules that apply to the permanent partnership which also apply to the decreasing partnership, the following rules also must be observed.

1. It is a condition in the decreasing partnership that it shall not be a mere loan financing operation. In other words there must be shared ownership and all the parties must share in the profits or losses during the period of the partnership.

2. It is a condition that the bank must completely own its share in the partnership and all rights of ownership with regard to management of the business. In the event that bank authorizes its partner to manage the business, the bank shall have the right of oversight supervision and follow up.

3. It is impermissible to include in the contract of decreasing partnership a condition that adjudges the partner to return to the bank the total of its shares in capital in addition to profits accruing from that share, because of resemblance to Riba (usury).

4. It is permissible for the bank to offer a promise to sell its shares in the company to the partner, if the partner pays the value of the shares. The sale must be concluded as a separate deal with no connection to the contract of the company. 

Application  of Diminishing Musharaka

 

The decreasing Musharaka is suitable for the financing of industrial businesses that have regular income. It can be considered to be the appropriate mode to finance collective investment. In this arrangement, the bank earns periodic profits throughout the year and it encourages the partner to participate in the joint investment. In addition it fosters individual ownership by allowing the partner to gradually buy the bank's ownership interest. In terms of society as a whole it corrects the course of the economy by developing a mode of positive partnership instead of the negative relationship of indebtedness. In addition, it assists in the equitable distribution of societies wealth.   

 

2.3 Concluding Remark

 

Financing through a Musharaka partnership is investment-based. The capital provider has full control in the management of the business. In addition, he shares proportionately in both the profits and losses of the business. Therefore, the rate of return is uncertain and can be either positive or negative. The cost of capital is also uncertain and there exists perfect correlation between the relationship of cost of capital and rate of return on capital.   

 

3. MUDARABA

 

3.1 Definition of Mudaraba

 

The term Mudaraba refers to a contract between two parties in which one party supplies capital to the other party for the purpose of engaging in a business activity with the understanding that any profits will be shared in a mutually agreed upon. Losses, on the other hand, are the sole responsibility of the provider of the capital. Mudaraba is also known a Qirad and Muqaradah (Shirazi 1990, p.31).

 

Mudaraba is a contract of those who have capital with those who have expertise, where the first party provides capital and the other party provides the expertise with the purpose of earning Halal (lawful) profit which will be shared in a mutually agreed upon proportion.  This type of business venture serves the interest of the capital owner and the Mudarib (agent).

 

The capital owner may not have the ability or the experience to run a profitable business. On the other hand, the agent (the Mudarib) may not have adequate capital to invest in a business or project.  Therefore, by entering into a contract of Mudaraba each party compliments one another, allowing a business venture to be financed. The following are the steps of the Mudaraba contrac (ABIIB, p.53).

 

3.2 Steps of Mudaraba

 

The bank provides the capital as a capital owner. The Mudarib provides the effort and expertise for the investment of capital in exchange for a share in profit that is agreed upon by both parties.  

 

1. The Results of Mudaraba: The two parties calculate the earnings and divide the profits at the end of Mudaraba. This can be done periodically in accordance with the terms of the agreement, subject to the legal rules that apply. 

2. Payment of Mudaraba Capital: The bank recovers the Mudaraba capital it contributed before dividing the profits between the two parties because the profit is considered collateral for the capital.   

3. Distribution of wealth resulting from Mudaraba: In the event a loss occurs, the capital owner (the bank) is responsible for the entire loss.  In the event of profits, they are divided between the two parties in accordance with the agreement between them, subject to the capital being recovered first.   

3.3 Rules of Mudaraba

 

There are some legal rules that govern the business relationship Mudaraba which are as follows.

1. It is a condition in Mudaraba that the capital be specific in nature. In other words, the amount of capital must be known at the inception of the contract. The purpose of this rule is to ensure that there is no uncertainty about the amount of capital and, thus, no uncertainty about the division of profits.   

2. It is a condition that capital must be in the form of currency in circulation. However, merchandise can be contributed, so long as both parties to the business arrangement agree upon its value.   

3. It is a condition that the capital cannot be subject to indebtedness.  

4. It is permissible for a Mudarib to mix his private capital with the capital of the Mudaraba, thus becoming a partner. In addition, it is also permissible for the Mudarib to dispose of capital on behalf of the Mudaraba.   

5. It is a condition that the capital of the Mudaraba is delivered to the Mudarib. Some of the jurists permit the capital owner to withhold capital and release it gradually according to the needs of the Mudarib since the Mudaraba adjudges unrestricted disposal.  

6. It is permissible for the capital owner to deliver capital to two Mudharibs in a single contract.  It is permissible for the capital owner to vary the in profit sharing agreement between the two Mudharib based upon differences in the services provided  

7. It is permissible to impose restrictions on the Mudarib as long as the restriction is beneficial and does not hinder the agent's ability to make a profit.   

8. It is permissible for the Mudarib to hire an assistant to perform difficult work that he is unable to perform on his own.  

9. The disposal of capital by the Mudarib is restricted to reasons that are conducive to the Mudaraba. The Mudarib must not lend or donate any of the Mudaraba capital. Further, he is not allowed to enter into indebtedness nor enter into another partnership agreement with the Mudaraba capital. However, these activities are permissible if the capital owner consents and authorizes the agent to use his discretion.  

10. The Mudarib is not required to contribute any capital to the Mudaraba contract except when he is found to be negligent in the way the funds are handled. It is permissible to take a surety or mortgage from the Mudarib to guarantee payment in the event of negligence violation of the contract conditions. However, it is impermissible to take a mortgage as a guarantee of capital or profit.  

11. It is a condition that profits be carefully and properly accounted for to avoid confusion by the parties to the contract. The contracting parties should stipulate how profits are to be shared on a percentage basis. It is impermissible to stipulate a fixed lump sum as profit.   

12. Profits in a Mudaraba relationship are distributed according to the agreement of the two contracting parties. It is a condition that the capital owner be solely responsible for any losses.   

13. The Mudarib shall collect his share of the profit only after obtaining the permission of the capital owner. In addition, the Mudarib can not collect his share of profit until after capital outlay is recouped.   In the event the profits are split prior to the closing of the Mudaraba, any losses incurred shall be reimbursed by the distributed profits.   

14. The Mudarib does not receive his share of the profits until the final settlement of the Mudaraba. Once the Mudaraba has been settled, neither party is liable to the other without a new agreement being made.  

15. The Mudaraba agreement may be terminated if one of the two parties decides to rescind the agreement. This is possible because the Mudaraba is an optional non-binding agreement. Some of the jurists hold the view that Mudaraba is binding and it cannot be rescinded if the Mudarib commences work.  

3.4 Concluding Remark

 

It is an investment-based form of financing. The provider of capital in Mudaraba has no role in the management of the capital. However, he has to bear the risk of capital loss as well as the opportunity cost of capital for the entire period of the contract. The rate of return is quite uncertain and the cost of capital is also uncertain. Hence, there is a perfect correlation between cost of capital and rare of return on capital.  

 

4. BAI-SALAM

 

4.1 Meaning of Bai-Salam

 

Bai-Salam is a term used to define a sale in which the buyer makes advance payment, but the delivery is delayed until some time in the future. Usually the seller is an individual or business and the buyer is the bank.

 

The Bai-Salam sales serve the interests of both parties (Ibid).

1. The seller receives advance payment in exchange for the obligation to deliver the commodity at some later date. He benefits from the Salam sale by locking in a price for his commodity, thereby allowing him to cover his financial needs whether they are personal expenses, family expenses or business expenses.

2. The purchaser benefits because he receives delivery of the commodity when it is needed to fulfill some other agreement, without incurring storage costs. Second, a Bai-Salam sale is usually less expensive than a cash sale. Finally a Bai-Salam agreement allows the purchase to lock in a price, thus protecting him from price fluctuation. 

4.2 Steps of Bai-Salam

1. Cash sale or Sale on Credit - The bank pays the agreed upon price at the time of the contracts inception. The seller agrees to the delivery of the commodity some specified date in the future. 

2. Delivery and Receipt of the Commodity on the Specific due Date: There are several options for delivery available to the bank

a)      The bank may receive the commodity and resell it to another party for cash or credit.

b)      The bank may authorize the seller to find another buyer for the commodity.

c)       The bank may direct the seller to deliver the commodity directly to a third party with whom the bank has entered into another agreement.

1. The Sale Contract: The bank agrees to sell the commodity for cash or a deferred price, which is higher than the Salam purchase price.  The buyer agrees to purchase and to pay the price according to the agreement.

There are some rules for Bai-Salam as given below. 

 

4.3 Rules of Bai-Salam

1. It is a condition that the commodity known by both parties to the agreement. Misunderstandings about the commodity may lead to disputes, which could void the contract.

2. It is a condition that the quality of the commodity be monitored closely, as very little variation from specifications in the contract are allowable. If the commodity cannot be monitored for quality standards, a Salam transaction is impermissible.

3. It is a condition that the commodity be deliverable on the due date. If there is uncertainty about the ability to deliver the commodity at the due date, a Salam transaction is impermissible.

4. It is permissible to draw a Salam sale contract for a total to be delivered increments on different specified future dates.

5. It is a condition that the commodity is a liability debt. The seller is obliged to deliver the commodity when it is due, according to the specifications stipulated in the contract, whether or not his firm produces the commodity or obtained from other firms. 

6. Salam sales are impermissible on existing commodities because damage and deterioration cannot be assured before delivery on the due date. 

7. Salam is impermissible on Land lots and real estates.

8. Salam is permissible on a commodity of a specific locality if it is assured that it is almost always available in that locality and it rarely becomes unavailable.

9. It is a condition that the purchase price in Salam is specified and advanced to the seller at the time of signing of contract. 

10. It is a condition in a Salam sale that the due date is known to avoid confusion, which may lead to a dispute.

11. It is a condition that the place of delivery be stated in the contract if the commodity requires special handling and delivery arrangements.

12. It is permissible to take a mortgage on Salam debt to guarantee that the seller satisfies his obligation by delivering the commodity on the due date.

13. It is impermissible for the buyer of a Salam commodity to sell the commodity before receiving it. It is known that the Salam commodity is a liability debt to the seller and not a commodity that exists. However, it is permissible for the buyer to draw a parallel Salam contract without connecting it to the first Salam contract.

Typical Bai-Salam transactions are discussed below:

 

4.4 Application of Bai-Salam

 

Salam sales are frequently used to finance the agricultural industry. Banks advance cash to farmers today for delivery of the crop during the harvest season. Thus banks provide farmers with the capital necessary to finance the cost of producing a crop.

 

Salam sale are also used to finance commercial and industrial activities. Once again the bank advances cash to businesses necessary to finance the cost of production, operations and expenses in exchange for future delivery of the end product. In the meantime, the bank is able to market the product to other customers at lucrative prices. 

In addition, the Salam sale is used by banks to finance craftsmen and small producers, by supplying them with the capital necessary to finance the inputs to production in exchange for the future delivery of products at some future date.

 

Thus as has been demonstrated, the Salam sale is useful in providing financing for a variety of clients, including farmers, industrialists, contractors and traders. The proceeds in a Salam sale may be used to cover the finance of operation costs and capital costs.

 

4.5 Concluding Remark

 

The Bai Salam agreement is a combination of debt and trading. The capital provider has no control over the management of capital provided. However the capital provider takes all of the risk as profits cannot be determined until the commodity is delivered and the final sale price is determined. In addition the capital provider incurs the opportunity cost associated with the capital outlay. Like the other three previously discussed modes of finance there is no certain rate of return. In addition the cost of capital is uncertain ex-ante. Also, there is no correlation in the relationship of cost of capital and rate of return on capital.  

 

5. ISTISNA'A  SALE

 

5.1 Definition of Istisna'a Sale

 

The Istisna'a sale is a contract in which the price is paid in advance at the time of the contract and the object of sale is manufactured and delivered later (IDB 1992, p.28). The majority of the jurists consider Istisna'a as one of the divisions of Salam, Therefore, it is subsumed under the definition of Salam. But the Hanafie school of Jurisprudence classifies Istisna'a as an independent and distinct contract. The jurists of the Hanafie school have given various definitions to Istisna'a some of which are: "That it is a contract with a manufacturer to make something" and "It is a contract on a commodity on liability with the provision of work".  The Purchaser is called 'Mustasnia' contractor and the seller is called 'Sania' maker or manufacturer and the thing is called 'Masnooa', manufactured, built, made (ABIIB). Islamic banks can utilize Istisna'a in two ways.

1. It is permissible for the bank to buy a commodity on Istisna'a contract then sell it after receipt for cash or deferred payment.

2. It is also permissible for the bank to enter into a Istisna'a contract in the capacity of seller to those who demand a purchase of a particular commodity and then draw a parallel Istisna'a contract in the capacity of a buyer with another party to manufacture the commodity agreed upon in the first contract.

Each transaction is deemed a separate contract with payment being made in cash either immediately or on a deferred basis. Any disagreements that may arise are settled under each contract separately according to the provisions therein. The steps of the Istisna'a sale and the parallel Istisna'a have been discussed below.

 

5.2 Steps of Istisna'a Sale

 

Istisna'a Sale Contract:  The Buyer expresses his desire to buy a commodity and brings a request to purchase the commodity to the bank. The method of payment, whether cash or deferred is set forth in the agreement. The bank agrees to deliver the commodity to the buyer at some agreed upon time in the future. 

 

The Parallel Istisna'a Contract: In order that the bank is able to deliver said commodity in the Istisna'a agreement, the bank enters into a parallel Istisna'a agreement with a third party to either manufacture or otherwise deliver-said commodity. Obviously, the bank stipulates a price that is lower than that agreed to in the original agreement and requires delivery on or before the date stipulated in the original contract.

 

The seller, in the parallel agreement, agrees to manufacture the specific commodity and to deliver it on the due date agreed upon.

 

Delivery and Receipt of the Commodity: The seller in the parallel Istisna'a agreement, delivers the commodity to the bank on the agreed upon date. The bank, in turn, delivers the product to the buyer of the original Istisna'a contract, in accordance with the original agreement. In this way, all parties fulfill their obligations to the contract.

 

5.3 Rules of Istisna'a Sale

1. It is a condition in the Istisna'a contract to clearly define dimensions and specifications of the product being purchased. This is important to ensure that there is no room for dispute over what is required.

2. The Istisna'a contract is only used for objects that can be manufactured. It can not be used to purchase corn, wheat, barley, fruit or any natural product.

3. The object sold in a Istisna'a contract is a fixed liability debt and it is permissible for the object to be a custom manufactured product, made in accordance with certain specifications.

4. The maker should supply the materials. If they are supplied by the buyer, the contract is Ijara and not Istisna'a.

5. Once the contract is drawn the ownership of the asset is confirmed to the buyer and the purchase price is confirmed to the manufacturer.

6. It is not a condition in the Istisna'a contract to advance the price. Usually part of the price is paid in advance and the remainder is withheld until the time of delivery.

7. It is a condition that the time of delivery be specified in the agreement to avoid confusion that may lead to a dispute over the transaction.

8. It is a condition that the place of delivery be stated in the contract if the commodity requires special handling and delivering arrangements.

9. The buyer may stipulate in the Istisna'a contract that the commodity shall be manufactured or produced by a specific manufacturer, or manufactured with specific materials. This is not permitted in a case of Salam Sale.

5.4 Application of Istisna'a Sale

 

The Istisna'a contract allows Islamic banks to finance the public needs and the vital interests of the society to develop the Islamic economy in accordance with Islamic teachings. For example Istisna'a contracts are used to finance high technology industries such as the aviation, locomotive and ship building industries. In addition, this type of business transaction is also used in the production of large machinery and equipment manufactured in factories and workshops. Finally, the Istisna'a contract is also applied in the construction industry such as apartment buildings, hospitals, schools, and universities to whatever that makes the network for modern life. One final note, the Istisna'a contract is best used in those transactions in which the product being purchased can easily be measured in terms of the specified criteria of the contract. 

 

6. QARD HASAN  (Benevolent loans)

 

Qard Hasan is a contract in which one of the parties (the lender) places into the ownership of the other party (the borrower) a definite parcel of his property, in exchange nothing more than the eventual return of something in the same value of the property loaned.

 

Ausaf Ahmad (1998, p.49) mentioned that since interest on all kinds of loans is prohibited in Islam, a loan that is to be given in accordance with the Islamic principle, has to be, by definition, a benevolent loan (Qard Hasan) i.e. a loan without interest. It has to be granted on the grounds of compassion, i.e. to remove the financial distress caused by the absence of sufficient money in the face of dire need. Since banks are profit driven organizations, it would seem that there is not much opportunity for the application of this technique. However, Islamic banks also play a socially useful role. Hence they make provisions to provide Qard Hasan besides engaging in income generating activities.

 

There may be slight variations among different Islamic banks in the use of this technique. The Faisal Islamic Bank of Egypt provides interest-free benevolent loans to the holders of investment and current accounts, in accordance with the conditions set forth by its board of directors. The bank also grants benevolent loans to other individuals under conditions decreed by its Board. On the other hand, the Jordan Islamic Bank Law authorizes it to give "benevolent loans (Qard Hasan) for productive purposes in various fields to enable the beneficiaries to start independent lives or to raise their incomes and standard of living (Ibid, pp.49-50). Iranian banks are required to set aside a portion of their resources out of which interest free loans (Qard Hasan) can be given to small producers, entrepreneurs and farmers who are not able to secure financing for investment or working capital from other alternative sources, and needy customers. It should also be noted that Iranian banks are permitted to charge a minimum service fee to cover the cost of administering these funds.

 

Finally, in Pakistan, Qard Hasan is part of the bank's normal financing activities. Qard Hasan loans are granted compassionate basis and no service charges are imposed on the borrower. While these loans are considered loans of compassion, they are expected to be repaid when it is possible for the borrower to do so. Furthermore in Pakistan, Qard Hasan operations are concentrated in the head office of each bank. Branch offices are not permitted to extend these loans.  

 

7. BAI-MUAJJAL (Deferred Sale)

 

7.1 Meaning of Bai-Muajjal

 

The terms "Bai" and "Muajjal" are derived from the Arabic words 'Bai' and 'Ajal'. The word 'Bai' means purchase and sale and the word 'Ajal' means a fixed time or a fixed period. "Bai-Muajjal" is a sale for which payment is made at a future fixed date or within a fixed period. In short, it is a sale on credit.

 

The Bai-Muajjal may be defined as a contract between a buyer and a seller under which the seller sells certain specific goods, permissible under Shariah and law of the country, to the buyer at an agreed fixed price payable at a certain fixed future date in lump sum or in fixed installments.

 

There are some important features of Bai-Muajjal as given below (ABIIB).

 

7.2 Important Features of Bai-Muajjal

1. It is permissible and in most cases, the client will approach the bank with an offer to purchase a specific good through a Bai-Muajjal agreement.

2. It is permissible to make the promise binding upon the client to purchase the goods from the bank. In other words, the client is required to either satisfy the promise or to indemnify the bank for damages caused by breaking the promise without excuse.

3. It is permissible to take cash/collateral security to guarantee the implementation of the promise or to indemnify the bank for damages caused by non-payment.

4. It is also permissible to document the debt resulting from Bai-Muajjal by a Guarantor, or a mortgage or both, like any other debt. Mortgage/Guarantee/Cash security may be obtained prior to the signing of the Agreement or at the time of signing the Agreement.

5. Stock and availability of goods is a basic condition for signing a Bai-Muajjal Agreement. Therefore, the bank must purchase the goods in accordance with the specifications of the client, prior to signing the Bai-Muajjal Agreement with the client.

6. All goods purchased on behalf of a Bai-Muajjal agreement are the responsibility of the bank until they are delivered to the client.

7. The bank must deliver the goods to the client at the time and place specified in the contract.

8. The bank may sell the goods at a higher price than the purchase price to earn profit.

9. The price is fixed at the time of the agreement and cannot be altered.

10. The bank is not required to disclose the profit made on the transaction.  

7.3 Some Observations

 

This type of financing by the bank is considered to be more risky than the other Islamic modes of investment previously discussed.  Therefore, the application/proposal for Bai-Muajjal investment must be reviewed very carefully to ensure the client can ultimately make payment. . The following steps may be taken to ensure the Bai-Muajjal Investment is a good proposition for the bank:

1. The bank may meet with the prospective client regarding his investment needs and business experience prior to an application /proposal is submitted.  

2. The bank may review the client's past performance and other financing arrangements he may have had with the bank in the past. 

3. The bank may review its current investment policy regarding this type of financing arrangement to ensure the proposal meets bank guidelines. 

It should be remembered that if the Bai-Muajjal investment is not secured by first class collateral securities, it becomes more risky than investments under other modes of Islamic banking.

 

The following poi