Understanding Islamic Finance - Doha Academy of Tertiary Studies

230 Understanding Islamic FinanceMurabaha operations by Islamic banks constitute two sales in one; the contract of promiseand the sale deed. The objection is that as the promise is made binding, it takes on thecharacter of a sale, leading to two contracts in one sale contract. 57 A very simple fact,however, is that as it does not involve violation of any major Sharī´ah principle, almostall contemporary jurists have allowed the combination, as the promise does not take theform of a formal contract. The implications of a sale contract and a promise to purchase aredifferent. A unilateral promise remains a promise and cannot take the form of a contract.With regard to the credit price being more than the cash market price of the goods beingsold under Murabaha, we have already discussed this issue in Chapters 4 and 6. Some otherissues are discussed below.9.9.1 Avoiding Buy-backBai‘ al ‘Inah, commonly known as “buy-back”, is a double sale by which the borrower andthe lender sell and then resell an object between them, once for cash and again for a higherprice on credit, with the net result of a loan with interest. As such, it is a legal device tocircumvent the prohibition of Riba and therefore prohibited. Although banking authorities inMalaysia consider it acceptable, the mainstream Sharī´ah experts from the Middle East andthe rest of the world consider it nonpermissible. Therefore, Islamic banks, while conductingMurabaha to Purchase Orderer, have to be vigilant that the goods being required by theclient are not already owned by him. The AAOIFI also holds this view. 589.9.2 Khiyar (Option to Rescind the Sale) in MurabahaMost scholars do not consider Khiyar (option) to be necessary in modern Murabaha. Somebanks stipulate in the contract that any defect is the liability of the buyer if he examinesthe goods himself, or if they are described to him (in such a way) as to eliminate ignorance(about the goods), which could lead to dispute. However, any lack in the quantity of thegoods or specification remains the liability of the seller. This latter case results in the saleprice being reduced by an amount proportionally corresponding to the missing goods, withthe buyer having the right to rescind the contract. 59Hence, from a juristic point of view, if the goods are defective or not according to thestipulated specifications, Khiyar al ‘Aib and Khiyar al Wasf are available to the client, and ifhe rejects the goods on the grounds of inferior quality before the execution of the Murabahadeal, the goods can be returned to the supplier and genuine quality goods can be acquiredthrough the same or a new Murabaha. The bank can also stipulate that, after inspection of thegoods by the client and execution of Murabaha, it will not be liable for any discrepancies. 60As discussed above, in the case of warranties, the bank can also assign such rights to theclient.If option is available to the customer, the bank will be carrying a much larger risk andmay have to carry out, before agreeing to the financing, a more intensive market survey,that may not be possible for most of the Islamic banks in their present structure and state57 Ray, 1995, p. 5458 AAOIFI, 2004–5a, pp. 114, 128.59 Kuwait Finance House, n.d., 2, Fatāwa No. 61, translation in Ray, 1995, p. 181.60 AAOIFI, 2004–5a, Standard on Murabaha, clause 4/9.