Dual status played by these banks to prove, that the contract is actually executed by the bank during this contract debts and not mudharabah. That is because when he acted as entrepreneurs, then the status of funds available to it is the trust that must be maintained as appropriate to maintain trust others. And mandate of the investor is managing these funds in a real business that will bring results (profits), so that no bank should re-channel the capital that he received from customers (investors) to another employer with mudharabah. However, when he acted as financier, it belied the fact that actually, that most managed funds are owned by the customer.
Imam an-Nawawi said, "The second law: do not be justified for business actors (mudharib) to channel the capital that she received to a third party mudaraba agreement. If he did so with the permission of investors, so he came out of mudharabah (first) andchanged its status to a representative for the investor in this second mudharabah, then it is justified. However, it is not justified to require for himself the least of the benefits. If he still requires it, then the second mudharabah vanity. " (Raudhah ath-Thalibin by Imam an-Nawawi 5 / 132, please see also at-Tahdzib by Imam al-Baghawi 4 / 392, Mughni al-Muhtaj by ash-Syarbini 2 / 314, and al-Mudharabah Syarikah FII al-Fiqhi al-Islami, by Dr.. Sa'ad bin al-Mahdi bin Gharir Silmu things. 202).
Similar remark also expressed by Imam Ibn Qudama al-Hanbali, he said, "is not justified for business actors to channel capital (which he received) to others in the form of mudaraba, the affirmation of Imam Ahmad. ... This opinion is the opinion of Imam Abu Hanifah, ash-Shafi'i and I did not know there are other scholars who menyelisihinya. " (Al-Mughni by Ibn Qudama al-Hanbali, 7 / 156).
In mudharabah, if the banks play such a dual role with the permission of investors, while he did not participate in the operations conducted by both businesses, the banks are not entitled to a share of the profits, because of its status only as an intermediary (broker). The scholars explain that, for legal reasons this is because the results / benefits in mudharabah only the rights of owners of capital and entrepreneurs, while those who do not have the capital, and did not participate in the implementation of the business, so he is not entitled to a part of the results (see Al-Aziz by ar-Rafi'i 6/27-28, Raudhah ath-Thalibin by Imam an-Nawawi 5 / 132, al-Mughni by Ibn Qudama 7 / 158, Mughnil Muhtaaj by ash-Syarbini 2 / 314, and Syarikatul Mudharabah Fiqhil Islaamy by Dr. Phil. Saad bin Gharir as-Silmy, p.. 202).
Second Review: Banks Have No Business Real.
Financial bodies calling themselves as Islamic banking as if not wholeheartedly in applying Islamic economic system. These bodies are trying to avoid the laws that Allah Ta'ala has specified in the business world. Sunnatullah is a pair of lovebirds who can not be separated, ie gains and losses. Islamic banking operators Shari'a always stop at a safe stage and not at risk.
Therefore, Islamic banking is-usually-not or do not have a real business that can generate profits. All types of banking products that they offer only limited to financing and funding. Thus, at each business unit is managed, the role of the dealer banks only as the customer's money [this method makes us difficult to find significant differences between Islamic banking with conventional banking.And perhaps this is what makes the infidel countries, too, competing to establish Islamic banking. In fact, some countries such as Singapore-the infidels-have proclaimed themselves as the economic center of Islamic (sharia). Therefore, not surprisingly, CAPITAL Magazine launch his statement Mr Muhaimin Iskandar (Deputy Chairman of Parliament at the time): There is no economic terms of non-Islamic and Islamic economics, because it's just a matter of naming it. (CAPITAL Magazine no. 18/II April 2004, p.. 19)].
As an obvious example of an existing banking products is mudaraba. Operator does not assume the role of the banking business, but as the funding channel customers. This they do for fear of a variety of business risks, and just wanted to make a profit.If such is the case, then the profit gained or required by banks to customers implementing business is illegitimate, as confirmed by several scholars among them, as mentioned by Imam an-Nawawi above.
Third Review: Banks Not Ready Bearing Losses.
If we close the eyes of both of the above, then there is still a major problem facing Islamic banking step in our country. That is, lack of banking operator to bear risks that they intertwine mudaraba with business actors. When businesses suffer losses even if unintentionally, we inevitably get banks immediately scamper by requesting return of capital which he has in ensuring the whole.This is an indication that the agreement between banking and business customers is not a mudaraba, but the flowering debts aka usury.
The scholars of various sects have asserted that the owners of capital is not justified to require that businesses provide guarantees all or part of its capital. So what is applied to Islamic banking, which requires that top businessmen to return all capital to the whole in the event of loss of business is the requirement of vanity (read: al-Mughni by Ibn Qudama 7 / 145, al-Mausu'ah al-Fiqhiyyah al- Kuwaiti, 38/64). And in the science of jurisprudence, if the contract contained a requirement that falsehood, then the solution that exists is one of two things:
1 - The contract is invalid and its requirements, so that each party concerned shall restore all of the rights akadnya opponent.
2 - The contract can be continued, but with leave requirements.
For example, such as the Islamic Bank to disburse capital of Yogyakarta to Mr. Ahmad-example-of Rp. 100,000,000, - with profit sharing agreement of 60% versus 40%. Once the business is running and has matured, Mr. Ahmad had stolen, or a warehouse on fire or something similar, so the capital he received from the bank only the remaining Rp. 20.000.000, -. In these circumstances, the Islamic Bank of Yogyakarta will still ask for Mr Ahmad to restore their capital intact, namely Rp. 100,000,000, -.
Perhaps sharia banking operators would argue, that in the business world, money back as they are without any gain is a loss.Thus, banks have participated bear the loss. Then we say that, similar reasons can also be expressed by a business executive; in the business world, someone to work without getting any result is a loss. If he worked at a company, surely he will get a salary that has been agreed, although the company was losing money. Even in mudharabah with sharia banking, businesses losing money twice:
First, he has worked there busting his gut, wring sweat, and in the end did not get the slightest. Second, he still must close the shortage that occurred in the capital he has ever received from the bank.
Another example of sharia banking products is bai 'al-murabaha.The shape is more or less so, if there is someone who wants to have a motorcycle, he can apply to an Islamic banking, the bank bought it for. Furthermore, the banks will assess the feasibility of this prospective clients. If the request is received, then the bank will soon hold the goods in question and immediately handed it over to the buyer, under the conditions previously agreed upon (Bank Syariah from Theory to Practice by Muhammad Shafi Antonio, 171).
Overview of this contract is not problem, but if we look more closely, it would seem clear that the bank tried to cover all risks.Therefore, before the bank holding the goods in question, the bank has made a sale and purchase agreements with all its provisions with the customer. Thus, the bank has sold the goods that he has not had, and it is forbidden.
عن ابن عباس رضي الله عنهما قال قال رسول الله صلى الله عليه وسلم: (من ابتاع طعاما فلا يبعه حتى يقبضه) قال ابن عباس: وأحسب كل شيء بمنزلة الطعام. متفق عليه
"From a friend of Ibn 'Abbas radhiallahu' anhuma he said, the Prophet sallallaahu 'alaihi wa sallam said,' Anyone who buys groceries, then he must not resell it until he finished accept it." Ibn 'Abbas said,' And I think that, all legal things like groceries. '"(Narrated Agreed alaih).
Understanding Ibn 'Abbas is supported by the history of Zaid ibn Thabit radhillahu' anhu, narrated in the hadith as follows,
عن ابن عمر قال: ابتعت زيتا في السوق, فلما استوجبته لنفسي لقيني رجل فأعطاني به ربحا حسنا, فأردت أن أضرب على يده, فأخذ رجل من خلفي بذراعي, فالتفت فإذا زيد بن ثابت فقال: لا تبعه حيث ابتعته حتى تحوزه إلى رحلك فإن رسول الله صلى الله عليه وسلم نهى أن تباع السلع حيث تبتاع حتى يحوزها التجار إلى رحالهم. رواه أبو داود والحاكم
"From a friend he tells the story of Ibn Umar, 'At one time I bought oil on the market, and when I have finished buying, there was a man who met me and offered oil, and then he gave me a considerable advantage, then I will want to shake his hand (in orderaccept an offer from that person), all of a sudden there's someone behind me holding my arm. So I looked and looked, and it turns out he was Zaid bin Thabit, and then he said, 'Do not sell the oil at the place where you bought it, until you move them to place, because the Prophet sallallaahu 'alaihi wa sallam prohibited from reselling the goods at the place the goods are purchased, until the goods are moved by the traders to place their own. " (Narrated by Abu Dawood and al-Hakim, although there isnaad Muhammad ibn Ishaq, but he has said emphatically, that he heard this hadith directly from his teacher, as it is stated in the book at-Verification. Read Nasbu ar-Rayah, 4 / 43, and at-Verification, 2 / 181).
The scholars mention the wisdom of this prohibition, among them was because the goods that have not been transferred to the buyer could be canceled for any reason, such goods are destroyed burned, or destroyed by water and others, so that when he had to sell it back he can not give to the second buyer.
Wisdom second, as stated by Ibn 'Abbas radhillahu' Thawus anhuma when pupils are questioned because of this ban,
قلت لابن عباس: كيف ذاك? قال: ذاك دراهم بدراهم والطعام مرجأ.
"I asked Ibn 'Abbas,' What about why so? 'He replied,' That's because it actually happened was selling dirhams with dirhams, while the food materials was delayed." (Reported by Bukhari and Muslim).
Ibn Hajar explains the words of Ibn 'Abbas at the top as follows, "When someone buys groceries for 100 dinars, for example-and he has paid the money to the seller, while he had not received food that he bought, then he sold it back to others worth 120 pence, and he immediately accepted the payment of money, but food still remain in the seller first, then as if this person has sold / exchanged money 100 dinars to 120 dinars price. And based on this interpretation, then this prohibition applies not only on food alone. "(Fathu al-Bari by Ibn Hajar al-Asqalani, 4/348-349).
Author: Ustadz Dr. Muhammad Arifin Badri, M.A
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