FORMS OF CONTRACT AKAD Exchange Agreement By Dr

FORMS OF CONTRACT (AKAD) Exchange Agreement By: Dr. Gemala Dewi, SH. , LL. M Maret 2012

EXCHANGE AGREEMENT n n As-Sharf (exchange money with money) Barter (exchange of goods with goods) Buy Sell (al-Bay`/al Buyu`) (exchange of money with goods) Lease (Ijarah) (exchange of goods with money).

As-Sharf (exchange money with money) a. Devinition n - Literal meaning: the addition, exchange, avoidance, or buying and selling. n - Understanding of fiqh: as traded on the money with that kind of money and not similar. n - Example: - type: dinar with dinar - Not similar: dinar with dirham n At present, common in foreign banks or the money changer. b. Legal Basis Qur'an: Example: Q. S. Al-Kahf (18): 19: "Then the one command that wakens go to town with a bring your silver. . ". Hadith of the Prophet:

As-Sharf (exchange money with money) n n According to Hadist: "Narrated by Abu ash bin Ubadah Shamid said that the Prophet had said: " gold (let paid) with gold, silver with silver, the bur, verse by verse, dates by dates, and salt by salt, should be of the same or similar hands into the hands of (legitimate). So when different types at will sell you the cash requirement "(Muslim). In the history of Ibn 'Umar said: "Do not you peddle copies of gold with gold and silver with silver, except a kind, and you also do not trade in silver with gold one unseen (not in place) and the other is there" (HR Jamaat) In the history of Al-Khudri Abu Syaid also stipulated that if the exchange rate is traded it in kind of the same, then there should be no increase (HR. Al-Bukhari, Muslim. , And Ahmad ibn Hanbal).

As-Sharf (exchange money with money) C. Pillars and Conditions (1) (2) (3) (4) (5) The exchange must be made in cash (spot), meaning that each party should receive / submit their respective currency at the same time. The motive is the exchange in order to support commercial transactions, ie transactions of trade in goods and services between nations, not in the context of speculation. To be avoided conditional purchase, for example, A agrees to buy goods from B today with condition B had to buy it back at a certain date in the futures transactions should be done by the parties which is believed to provide foreign currency exchanged. It is forbidden to sell goods that have not mastered, or buying and selling without property rights. (bai al-fudhuli).

Barter n n Islam, in principle, allow for the exchange of goods with goods (barter), but is not recommended because it contains elements of usury. Regarding usury law described in many verses in the Qur'an and Hadith. Among others present in QS. AR-Rum (30): 39, an Nisa (4): 160 -161, Ali Imron (3): 130, and al-Baqarah (2): 278 -279.

Barter n n a) b) Hadith of Prophet About Barter Dates Barni. The general conclusion of the opinions of scholars, the point that the goods usury include: Gold and silver, whether in cash or in other forms. Material of staple foods such as rice, wheat, and corn as well as additional foodstuffs such as vegetables and fruits.

Buying and Selling (al-Bay`/al Buyu`) n n n n a. Buying and Selling in General 1) Devinition is based on mutual exchange of property voluntarily or move belongs to the dressing that can be justified (in the form of legal tender). 2) Legal Base a) Al-Qur`an: - “… And Allah has allowed sale and purchase and forbids usury …” (Q. S. al-Baqarah (2): 275). - “O who believe, do not each other neighbor's property by way of falsehood except by means of commerce that goes with consensual among you” (Q. S. an Nisa (4): 29).

Jual Beli (al-Bay`/al Buyu` ) n n n 3) Rukun Jual beli. (ada 3 hal). a) Penjual dan pembeli Syaratnya sama dengan syarat subyek akad pada umumnya. b) Uang dan benda yang dibeli c) Lafaz Ijab dan Kabul

Buying and Selling (al-Bay`/al Buyu`) A. Terms of invalidity: a) The seller and the buyer Requirement is the same as the subject of the contract in general terms. b) Money and items purchased B. Requirement is as follows: (1) Holy. Unauthorized unclean goods sold, such as animal skin carcasses that have not tanned (2) There are benefits. Should not sell something that is not any good. (3) Goods can be delivered. Unauthorized selling an item that can not be handed over to the purchase, (4) The Goods are salesman belongs, or belonged represents. (5) The goods are known by the seller and the buyer. substance, form, content (size), and its properties clearly.

Buying and Selling (al-Bay`/al Buyu`) c) q Lafaz Ijab and Qabul According to scholars who require lafadz, lafadz was required to meet several requirements, as follows. The state of consent and granted related and not long after. (2) both let the same meaning although lafadz both different. (3) Both are not to associate with other matters (4) Not timed, because buying and selling timeless like a month or a year is not valid. (1)

Buying and Selling (al-Bay`/al Buyu`) 4). Forms of Buying and Selling A. ) The Valid Buying and Selling (Bai’ Shahih) n n (1) (2) (3) n Buying and selling is said valid if it meets the requirements and specified in harmony. However legitimate purchase can also prohibited when: hurt the seller, buyer, or others; narrowing of market movements; damaging public tranquility. Sale and purchase of receivables. Regarding the sale of receivables (bai` u al dayn) direct (cash)

Buying and Selling (al-Bay`/al Buyu`) B) Invalid Buying and Selling. n Buying and selling becomes invalid (null) if any or all of rukunnya not met, such as buying and selling is done by children, crazy people or goods sold Shari'a prohibited. Forms of Invalid Buying and Selling (1) The sale and purchase something that does not exist (bai` al -ma`dum). Example : , bonded, Buying and selling calves were not there, still in the belly of its mother. (2) Selling goods that can not be handed over to the buyer (bai`u ma`juzi at taslim). Included in this category is the buying and selling of debt (bai`u al dain). The definition of debt is a good price to be paid, in lieu of loans, wage / rent a benefit, diyat (criminal sanctions), (3) Sale and purchase of receivables. Regarding the sale of receivables (bai` u al dayn) direct (cash) In the world of conventional banking practice bai aldain is known with name Stock Exchange securities trading securities, bonds. n

Buying and Selling (al-Bay`/al Buyu`) (4) The sale and purchase are considered unclean objects (bai`u an najas). All objects that include unclean and not worth according syari`at not transferable. (5) Sale and purchase of `ar bun /` urbun Buying and selling Urbun is selling an item by first paying a down payment to the seller (prior to purchased items accepted). (6) trade in common human rights (collective ownership) and are not transferable. For example, river water, lake water, sea water, and that should not be owned by someone.

c) Buying And Selling Defective (1) Unknown Buying and Selling (bai’ al-majhul) n Namely buying and selling (goods globally is unknown) or it is a total lack of clarity that brings discord. (2) Transaction that is associated with a condition. n For example greeting seller to the buyer, "I sell my car to you next month after payday. (3) Sell goods (no) in place or can not be submitted at the time of buying and selling takes place, so it can not be seen by the buyer. (4) Buying and selling is done by a blind person. Jumhur scholars say that the sale of the blind is valid if the blind person has the right to feel or sense the ability khiyar.

c) Buying And Selling Defective (5) Sale and purchase by barter prices forbidden. Example: make the goods that are forbidden as price, such as pigs, alcohol or blood and carcass. 6) Buying and selling doom the sale with deferred payment then bought back with cash. (7) Buying and selling grapes and other fruits for the purpose of manufacture of alcohol or wine seller if the buyer knows that it is the alcohol or the manufacturer. (8) Combining the two terms in the sales: someone selling an item on the buyer with buyer requirements should not be sold to a certain person, or the buyer may not donating / it over. (9) Sale and purchase of most goods can not be completely separated from the unit. For example: buy one shoe. (10) Buying and selling of fruits or grains that have not been perfect ripening for harvest.

Buying And Selling Murabahah Buying and selling in a particular form: 1). Murabaha (sale and purchase of goods above) a) b) Definition Murabahah is a sale and purchase of the purchase by one party and then sold to other parties who have applied for the purchase of goods with a profit or additional transparent pricing. Pillars and Conditions Pillars of murabahah equal to the buying and selling in general.

Buying And Selling Murabahah Requirements that must be met: Sale and purchase of murabahah should be done over the goods have been owned (ownership rights in the hands of the seller has both advantages and risks of the goods. Lack of clarity of information concerning the amount of capital and other costs commonly incurred in the purchase and sale of a commodity. (2) The existence of clear information about the benefits of both nominal and percentage. (3) In the system of murabahah, the seller may set a condition on the buyer to ensure that damage does not appear on the goods, but better terms as it does not need to be specified, because the custody of the goods is the seller's obligations in addition to maintaining the trust as well as possible. In the system of murabahah, the seller may set a condition on the buyer to ensure that damage does not appear on the goods, but better terms as it does not need to be specified. (1)

Bai’ As Salam 2. As Salam /As Salaf (Buying and Selling with the Payment in Advance) a) Devinition n As Salam or also called as the Salaf is purchasing goods diserahkankan later while payment made in advance. b) Legal Basis (1) Q. S. al-Baqarah (2) 282 (2) Hadith: Transmitted by Ibn Majah: From Suhaib ra, that the Prophet said: "Three things in which there are blessed: buying and selling as tough (greetings), muqaradhah (mudaraba), and mix with wheat flour for home use, not for sale. "

Bai’ As Salam Special conditions for the greeting is: 1. payment is made in advance. 2. Goods into debt for the seller 3. Goods can be given according to the time promised. Means at the time promised that the goods must already exist. 4. Goods are clearly let its size, proportion, or their number, according to habitual ways of selling such goods. 5. Known and mentioned properties and kinds of goods clearly that there is no doubt that will lead to a dispute between the two sides. By the nature of it means that the price and the willingness of people to the item may be different. 6. Mentioned places accept it.

Bai’ Al Istishna` n n Al Istishna`(Buying and Selling with Orders) Istishna` is one form of buying and selling greeting, only objects in the agreed form of contract manufacturing or production orders. Istishna` defined with the sales contract between the buyer and the manufacturer of the goods. In this contract manufacturer of goods (shani`) received an order from the buyer (mustashni`) to make goods with the specifications that have been agreed by both parties to the agreement on the price and payment system that is made in advance, by installment, or deferred until the future. According jumhur jurists, bai` al istishna` a special kind of contract bai` greetings. The difference, istishna` used in manufacturing. Thus, the provisions bai` al istishna` following contract provisions or rules bai` greetings.

Leasing (Ijarah) Devinition n According to the Ijarah transaction to the Hanafi scholars is a benefit in return. According to scholars Syafi`i is a transaction against the intended benefits, certain, is permissible, and can be used with certain benefits. Based on several definitions, bounds Ijarah restricted by the terms. Ijarah was only addressed to the benefit to the goods / services of any nature.

Ijarah 2) Legal Base n a) Al-Quran: Q. S. az-Zukhruf (43): 32, Q. S. ath –Thalaq (65): 6, Q. S. al -Qashash (28): 26, Q. S. al Baqarah (2): 233, Q. S. an Nisa` (4) : 29. b) Hadits: Transmitted by Bukhari, Muslim from Ibn Abbas: "Berbekamlah you, then give the reward to the artisan in you bruise it. “ n n c) Ijtihad: The jurists of Fiqih do not allow the exchange rate ijara lease money because it spends the material. While the ijara is simply intended benefits of an object. Additionally rent money means the excess of the stuff that tends to usury clear

3) Terms And Condition of Ijarah (Leasing). n n Both sides expressed willingness to do berakad Ijarah contract. The benefits of being the object ijara must be known perfectly, so do not bring disputes People who hire goods are entitled to use it to use the benefits of the goods, . In ijara services that are above one's job (`ala alijara a`mal), ijara object is not an obligation for that person. Ijarah is an object that can be rented. Wage / rental agreement within hrs ijara clear, specific and valuable. Hanafi scholars said the wage / rental was not similar to the benefits of rent.

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