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Bai Al innah

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noha qaid

on 5 December 2012

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Transcript of Bai Al innah

Bai’Al ‘Inah & SADD AL-DHARA’I
Bai’Al ‘Inah Issues of Bay al- ‘Inah
Applications of bai al inah Done by:
Definition: involve two transactions sale and buyback of an asset by the seller.
1.The asset will be sold to the buyer on deferred payment basis and later the seller will buy the same asset on cash basis at a lower price than the original price.
2. the customer who is seeking financing might sell an asset on cash basis to the bank, then buys the same asset at differed payment basis at a higher price, The difference between the purchase price by the bank and the sale price by the bank is the bank’s profit.
Islamic Credit Card System
The contract of bay al- inah was not clearly prohibited either in the Qur’an or in the Sunnah.
This justification indicates that the shari'ah scholars try to practice independent ijtihad
Refer directly to the primary and the secondary sources of Islamic law
Examine the prominent classical jurists' opinions but will not blindly restrict to them - 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
The basis of maslahah - the need or interest of Muslims contemporary society. The contract can help the society as well as the Islamic banks achieve their respective goals. The contract is accepted for the sake of majority interest.
The local shari'ah scholars adopt 'form over substance' approach which focuses on changing the legal terminology rather than the essence of the conventional banking products
Financing products created through bay' al-Inah economically has similar effects to the conventional banking loans
Local scholars' primary concern - to demonstrate the usefulness of various Islamic commercial contracts in today's modern world - wish to prove that Islamic commercial law has solution to the riba problem even in the complicated banking environment
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 - 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.
Scholars Opinion On
Bai’ al-’inah

Shafi’I argument

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.
Majority Hanbali & Maliki Disagree prohibited as it involve elemnt of ghara.
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, therefore the contract is illegal.
Definition of Sadd Dhara’i Dhari'ah(pl. dhara'i') have near meaning to al wasilah which is a means to get close to others.
Al dhara’i can be shown as prolong something or going further to get close to something.
Sadd literally means `blocking'.
Thus, Sadd al-dhara'i` implies blocking the means to an expected end which is likely to materialize if the means towards it is not obstructed.
Blocking the means must be understood to block the evil things not something good.

sad al-Dhara’I implies blocking the means of evil but not blocking the means of good. He added, in juridical application, the concept of sad al-dhara’i also extends to opening the means of beneficence.
: Sadd al-dhara’i is defined as something which is originally lawful but if it may cause prohibited result, it should be avoided.
Saim Kayadibi Al-Qurtubi : Sadd al-Dhari’i uses maslahah (good means) as a way to bring mafasadah (bad means).
The validity of the concept among the Islamic scholars is considered controversial. Hanafi, Shafi’I and Zahari jurists do not recognize it as one of sources of Islamic jurisprudence. However, Maliki and Hambali jurists have validated it as a principle of shariah.
Types of Sadd Dhara’i - Means which lead to evil or harm

- Means which are rarely expected to lead to evil and are likely to lead to benefit

- Means which are most likely to lead to evil

- Means which frequently lead to evil

Maliki and Hanbali have accepted it as valid source in Shariah.
Maliki’s approach to legal interpretation was, in one way, based on flexibility in the application of the principles in purpose to achieve the greatest benefit to the people
Ibn Hanbal’s approach to legal interpretation was purposive and he also frequently employed the tools of sad al-dhara’I
The important consideration with regard to sadd al-dhara’i‘ is thus the result of the action, and whether it leads to benefit or harm. Acceptance of Sadd al-dhara’i Under this principle come certain sub-principles, e.g:
(i) "preventing harm is given preference over gaining benefit"
(ii) "the lesser of two evils Shafi'i
said its alloed
THank You
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