GHARAR
GHARAR
Meaning: has a range of negative connotations, such
as, uncertainty, deception, risk, hazard, ignorance etc.
If there is gharar, the contracting party/ies do not
really understand the attributes / consequence of the
contract
Under Islamic law, gharar is prohibited because its
existence in the contract may deny the parties of equal
bargaining power and they cannot make informed
decisions; or if there is risks on deliverability of the
object of the contract
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PROHIBITION OF GHARAR
Surah an- Nisa’: ayat 29
“ … squander not your property amongst yourself unjustly (batil) except it
be a trade among you by mutual consent…”
Interpretative Efforts
What amounts to
Unjust (batil) Trade by Mutual Consent
Criteria Criteria
■ All illegal & defective elements in ■ Offer & Acceptance, indicating
contracts including gharar & consent
uncertainty ■ Elimination of mistake, fraud etc
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PROHIBITION OF GHARAR IN THE
SUNNAH
The sunnah uses the word gharar and its derivatives much
more extensively than the Qur`an in the sense that several
new meanings are added
In relation to commercial transactions, the Prophet s.a.w. in
many of his sayings directly prohibited the sale involving
gharar (uncertainty) and jahalah (ignorance)
Thus, the prohibition of gharar is made conclusive by the
sunnah / hadith of the Prophet s.a.w.
Examples: the prohibition of gharar sale (i.e., the sale
contract affected by gharar), the prohibition of the sale of
fish in the sea, bird in the air, unborn animals, lost items, etc.
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CONT’D…
In Islamic law, gharar can be of two degrees:
Excessive or major (gharar fahish)
Minor and tolerable (gharar yasir)
Only major /excessive gharar will affect the validity of contracts, where
it will render the contract void / voidable, depending on the degree of
uncertainty
Gharar affects trading and exchange contracts (mu`awadat); not
charitable and unilateral contracts
In banking & finance – gharar can be triggered e.g. – in the sale contract
to create the indebtedness if the asset used is uncertain / vaguely
identified; the trading of a securitised debt which is unconfirmed / not
established, sale of insurance policy
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Application of Gharar
Broadly speaking, gharar will effect the validity of
contract if it occurs in these areas:
- gharar in kind / type / attribute / quantity of the
object
- gharar due to delivery time
- gharar due to the price/ mode of payment
- doubt over the ability to deliver
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The Benchmark
Gharar which is excessive (gharar fahish) occurs in
exchange contracts (‘uqud al-mu’awadat)
To prevent gharar, the parties to contract must have
adequate knowledge and information on the subject matter:
i- Their existence and deliverability
ii- Its quality, quantity and attributes are known
iii- Time –frame for payment and delivery
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Tolerable gharar
However, gharar is tolerable if:
- i) it is trivial (gharar yasir)
- ii) It occurs in other than exchange contracts,
such as in gratuitous contracts.
-iii) It happens to the ancillary object (appendages)
only (not the principal and main subject matter of
contract)
- iv) the economic need for the contract
embodying the risk is substantial
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OTHER THINGS TO BE AVOIDED…
Transactions involving the prohibited commodities,
e.g., pork and liquor
Surah al Maidah (5:3)
Surah al Maidah (5:90)
Transactions involving gambling or maysir/qimar
Surah al Maidah (5:90)
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The avoidance of transactions involving
maysir (gambling)
Involves the creation of risk for the sake of risk
A combative relationship between two contracting
parties, each of whom undertakes the risk of loss
and the loss of one means gain for the other
Apply to all games of pure chance
No economic activities are gained in the practice.
The gambler will simply seek to amass wealth
without efforts.
Gambling is gharar in its worst scenario.
Prohibited by al-Qur’an in Surah al-Maidah (5:90)
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TRANSACTION INVOLVING
PROHIBITED COMMODITIES
It is also not allowed to conclude contract on illegal
commodities such as pork, liquor etc.
Illegality of certain commodities has been spelt out
clearly in the texts of al-Qur’an and Sunnah of the
Prophet.
E.g. :
- Surah al-Maidah (5:3)
- Surah al-Maidah (5: 90)
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Essential Contracts in Islamic Finance
Essential Contracts in Islamic Finance
Underlying principles utilised in devising products of IBF is
very important as they separate IBF from conventional
products.
Contrary to conventional finance, which is specification driven
product, Islamic finance is more structure and principle based
product
Rules and regulations will differ from one product to another,
depending on the structure employed In general, various
underlying Shariah principles have been utilised in devising
products of Islamic Banking and Finance.
They can be summarised as below:
- Sale based products
- Lease based products
- Participatory products
- Fee based products
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Examples of the products and underlying
principles
Banking products
The Islamic Inter bank Money Market
Capital Market Products
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SHARI`AH COMPLIANCE: MAIN PRINCIPLES
CONTRACTS
Lawful
Lawful Contractual
Contractual
Mutual
Mutual consent
consent Avoid
Avoid Objective
Objective
Interest Uncertainty Gambling Other prohibitions
(riba) (gharar) (maysir/qimar) e.g. Liquor, pork
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ENCOURAGEMENT OF TRADE BY
MUTUAL CONSENT
The Quran encourages work and trade
The Prophet (s.a.w.) himself was a trader
The encouragement of trade is evidenced by the
many instruments of trade available during the
Prophet's lifetime and in Islamic history thereafter
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BUSINESS CONTRACTS RECOGNISED IN
ISLAM
Contracts of sale and purchase (bay`), including all its
subdivisions, like:
normal or spot sale
mark-up sale (murabahah)
deferred payment sale
sale with advance payment but deferred delivery (bay` al
salam)
sale for future delivery of goods with flexible payment of the
price or manufacturing contracts (bay` al istisna`)
sale of currency (sarf), etc.
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CONT’D…
Some controversial sales:
Sell and buy back (bay’ al `inah)
Sale of Sale of debt (bay` al dayn)
Islam recognizes partnership contracts which are
mainly based on profit and loss sharing (PLS), e.g.:
mudharabah
musharakah
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CONT’D…
Islam recognises public and private project financing,
e.g.:
Leasing (ijarah) - private;
Endowment (waqf) – private/public;
State treasury (bayt al mal) – public.
Modern forms of private project financing:
Operational lease
Financial lease –(hybrid contract)
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CONT’D…
Islam recognises other additional contracts to provide
security to the parties in a contract, i.e., the contracts of
security (`uqud al tawthiqat), e.g.:
suretyship/guarantee (kafalah): involves three parties
mortgage (rahn): involves two parties
These security contracts are normally combined with other
types of contracts, e.g.:
the contract of BBA may be secured by a contract of security
involving collateral (rahn)
Other contracts recognised in Islamic law:
contracts of trusts (al amanat), e.g.: safe-keeping (wadi`ah)
contracts to do a specified task, e.g.: commision (ju`alah);
agency (wakalah)
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KEY ISLAMIC COMMERCIAL
CONTRACTS
Gratuitous
Gratuitous Trading
Trading Investment
Investment Supporting
Supporting
Contracts
Contracts Contracts
Contracts Contracts
Contracts Contracts
Contracts
Gift
Gift Leasing
Leasing Sale
Sale Mudarabah
Mudarabah Kafalah
Kafalah
Waqf
Waqf Musharakah
Musharakah Rahn
Rahn
Operational
Operational Bay`
Bay`
Loan
Loan Lease
Lease Bithaman
Bithaman Ajil
Ajil Hiwalah
Hiwalah
(BBA)
(BBA)
Ibra’
Ibra’ Wadiah
Wadiah
Financial
Financial
Lease
Lease Murabahah
Murabahah
Wakalah
Wakalah
Salam
Salam
Jualah
Jualah
Istisna’
Istisna’ etc.
etc. Muqasah
Muqasah
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Conclusion
Besides various frameworks applied to banking practices
(be it Islamic or conventional), Shariah framework is a
framework which is peculiar to Islamic finance alone
Yet, it forms the very substance of Islamic finance,
without which Islamic finance will loss its Islamicity
As such, in practicing Islamic finance, the do’s and don’ts
must be clearly observed
Islamic commercial law, from the fact that it subjects to
human interpretation and understanding admits
differences of opinion, as long as these differences are
grounded by valid evidence, produced by capable
personnel, done according to the right methodology
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