Resolutions of the Securities Commission Shariah Advisory Council

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Safqatain fi Safqah Principles of Muamalat in the Capital Market The basis for the prohibition of safqatain fi safqah is the sayings of the Prophet s.a.w: Meaning: “The Prophet s.a.w prohibited two contracts (sale and purchase) in one transaction.” In general, safqah refers to contracts and covers more than just sale and purchase contracts as it encompasses other contracts as well. 123 Past Islamic jurists were of different opinions in the interpretation of the said sayings and the types of contracts prohibited by the Prophet s.a.w. The majority of the jurists were of the opinion that safqatain fi safqah refers to baiàtain fi baiàh. 124 Amalgamation of Muàwadhah and Tabarru` Contemporary Islamic jurists discuss in general the law on the amalgamation of muàwadhah and tabarru`. 125 This is based on the views of past jurists in interpreting the sayings of the Prophet s.a.w: Meaning: “It is not allowable to combine debts with sale and purchase, two conditions in sale and purchase, taking a profit from an item which is not secured (occurrence of qabdh), and selling something which is not owned.” 126 Some Islamic jurists do not allow the amalgamation between muàwadhah and tabarru` type of contract. Ibn Taimiyah also held the same view 123 Al-Mausuàh al-Fiqhiyyah, vol. 9, p. 266. 124 Al-Syaukani, Nail al-Autar, vol. 5, p. 232. Nazih Hammad, Al-Ùqud al-Mustajiddah, no. 10, vol. 2, p. 516. 125 Abd Sattar Abu Ghuddah, “Al-Tafahum al-Janibi fi Majal al-Ùqud”, Hawliyah al-Barakah, no. 2, Dec 2000, p. 30. 126 Al-Syaukani, Nail al-Autar, vol. 5, pp. 261–262. 49
Resolutions of the Securities Commission Shariah Advisory Council because tabarru` is done to facilitate transaction in a muàwadhah way and not solely done voluntarily. 127 The Hanbali Mazhab also prohibits this amalgamation based on qiyas of the Prophets s.a.w. on the prohibition of the amalgamation between bai` and qardh. 128 Nazih Hammad was of the view that this qiyas cannot be the basis for the prohibition of the amalgamation between sale and purchase contracts and all contracts of the tabarru` type. This is because sale and purchase and hibah may be amalgamated into one contract. 129 The Hanbali Mazhab is the most open of all sects in issues pertaining to the inclusion of conditions in a contract. However, they clearly do not allow the amalgamation of muàwadhah and tabarru`. Bai` wa Syart Some Islamic jurists consider bai` wa syart as a prohibited contract as evidenced by the sayings of the Prophets s.a.w.: 50 Meaning: “The Prophet s.a.w. prohibited conditional sale and purchase transactions.” 130 However, the authenticity of these sayings is disputed by hadis experts because its isnad is disputed. This is further strengthened by examples of Islamic jurisprudence that allow conditional transactions as found in the scriptures of fiqh mu`tabar. 131 Conditions in a Contract The inclusion of conditions in a contract is a muamalat issue referred to as “nazariyyah muqtadha àqd” (purpose of contract theory). The Hanbali 127 Ahmad bin Taimiyah, Majmu` Fatawa, vol. 29, pp. 62–63. 128 Nazih Hammad, Al-Ùqud al-Mustajiddah, no. 10, vol. 2, p. 499. Abd Sattar Abu Ghuddah, Al-Tafahum al-Janibi fi Majal al-Ùqud, p.30. 129 Nazih Hammad, Al-Ùqud al-Mustajiddah, no. 10, vol. 2, p. 499. 130 Al-Syaukani, Nail al-Autar, vol. 5, p. 262. 131 Al-Syaukani, Nail al-Autar, vol. 5, p. 262. Nazih Hammad, Al-Ùqud al-Mustajiddah, no. 10, vol. 2, pp. 484–485.
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RESOLUTION Capital Market Issues Ac
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Two: Qabadh Hukmi or Qabadh Ma`nawi
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SHARIAH CRITERIA FOR LISTED SECURIT
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SHARIAH CRITERIA Shariah Criteria f
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Shariah Criteria for Listed Securit
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Al-Kasani also said: Shariah Criter
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INTRODUCTION Shariah Criteria for L
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(a) Illustration or reflection of s
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Arabic terms commonly used througho
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ijarah leasing contract Glossary ij
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ta`widh compensation ta’wil inter
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Resolutions of the Securities Commission Shariah Advisory Council

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