Validity of Murabahah Agreement in Financing of Savings and Loans Cooperative Based on Sharia Principles This is stated by Novea Elysa Wardhani, S.H., M.H. on Wednesday (11/09/2017) in the Open Exam Dissertation Doctoral Program, Faculty of Law, Brawijaya University.
Akad in Sharia Savings and Loan Cooperatives basically also adheres to the principle of freedom of contract as in positive law, namely the parties freely make agreements in any form, as long as it does not violate the Islamic Shari’a, legislation, public order and decency. So what distinguishes from the principle of freedom of contract adopted in positive law is the rule of Islamic Shari’ah, which prohibits the making of an agreement containing Riba (interest), Maisir (speculation or gambling), Gharar (deceit), Dzalim (evil) and Risywah (bribe).
Assembly examiners in this open examination, among others, Prof. Dr. Thohir Luth, M.A. as a promoter, Prof. Dr. Masruchin Ruba’i, S.H., M.S., and Dr. Sihabudin, S.H., M.H. as a promoter co. He said there is a fundamental weakness that is not yet a fairly comprehensive arrangement regarding the contract of Sharia Savings and Loan Cooperative. “This is what resulted in the process of saving and loan with the principles of shariah that is run at this time, without going through a clear concept,” he explained.
Akad most dominant KSPPS used in the sale and purchase transactions either in cash or installments is Murabahah. Murabahah financing is a facility provided in the form of bailouts for the purchase of goods and completes payment of the price of goods from SHARIA MICRO FINANCIAL INSTITUTE (LKMS) funds for the interest and on behalf of the customer, whose financing of the funds is done simultaneously. The nature of this financing is a sale and purchase transactions that generate sales receivables from selling something, and hasten the delivery of goods to the buyer (the debtor) by way of deferred payment of the price up to the time specified or by way of installment payments.
KSPPS in performing its financing activities using more murabahah contract with representatives or known as murabaha bil wakalah, which is a one-step transaction that is customer as a representative of KSPPS to purchase murabahah object, normatively in accordance with the classical fiqh law if the institution does not have the goods the customer wants as a prospective buyer, KSPPS must first make a purchase to the supplier, thus, the institution (KSPPS) acts as buyer and resells it to the customer for the cost of goods plus profit. According to the classical Jurisprudence murabahah transaction is done with two phases namely the first transaction between KSPPS and suppliers, until murabahah objects are under the control of KSPPS then KSPPS conduct transactions with customers. When the contract of sale and sale is only done in one stage, with the customer as a representative of KSPPS to buy goods to the supplier, consequently obscure the essence of murabahah in accordance with the provisions of sharia which leads to the blurring of norms that lead to legal uncertainty. This dissertation research entitled “The Validity of Murabahah Akadsahan In Financing Of Savings And Loans And Shariah Financing Based on Sharia Principles”, there are two main issues, namely: 1) How is the legitimacy of murabahah financing contract in sharia loan and sharia financing cooperative in accordance with sharia principles? 2) What is the arrangement of murabahah financing agreement in sharia lending cooperatives in the perspective of legal certainty and justice?
The type of research used in writing this dissertation is legal research with legal type of normative legal research, using approach of legislation, concept approach, and case approach. The study or analysis in this research is based on the theory of justice, the theory of Islamic law objectives (Maqashid al-Shariah), the theory of the origin (istishab), the theory of agreement, and the theory of legal certainty. Even the law used is the primary legal material namely Al-Qur’an and As-Sunnah and legislation relating to the issues studied, as well as secondary legal materials as supporters in this study are text books written by jurists, legal journals, articles, internet, and other sources that have a correlation to support this research.
Based on the results of research indicates that the murabaha bil wakalah contract which is used by KSPPS in its financing activities indicates the usury which causes the contract is not valid because it is against the sharia principles, and murabahah contract is made under the hand and there is also legalized by notariel, – Article 8 paragraph (1) of Law No. 12 of 2011 concerning the establishment of a legal regulation. [Fjr/Public Relations]