Consumer financing contract to purchase goods and services in the balance of Islamic jurisprudence (Comparative study)

El-Sayes, Nabil Mohamed Abdo

Consumer financing contract to purchase goods and services in the balance of Islamic jurisprudence (Comparative study)

Document Type : Original Article

Author

Nabil Mohamed Abdo El-Sayes

Department of Comparative Jurisprudence - Faculty of Islamic and Arabic Studies for Boys - Al-Azhar University - Disuq – Egypt.

Abstract

Many contracts were found in the era of the Prophet, may God bless him and grant him peace, and after him the Rightly Guided Caliphs and the Noble Companions, may God be pleased with them all, including: selling, leasing, Musaqat, farming, istisna’, and other contracts. After that, some contracts were new and the jurists worked hard to adapt them and explain their ruling. In Islamic Sharia law, and the new transactions in it that need research and study in order to clarify and explain the legal ruling on them, and among these contracts: the consumer financing contract, which is one of the new contracts that have appeared and spread widely recently, and it is: every starch. It aims to provide financing allocated for the purchase of goods and services for consumer purposes, in accordance with the provisions of Law No. (18) of the year (2020 AD) regarding regulating consumer financing activity؛ So that this aforementioned law specifies the companies and financial institutions that carry out financing and the controls, terms and conditions with customers through their contracts. In this research, I have dealt with: Explaining its reality, its pillars, the obligations of each party, and the difference between it and other similar contracts, then explaining the jurisprudential adaptation and legal ruling of this contract, the legal alternatives to it, and the results and recommendations that have been reached.

Keywords

Main Subjects

الفقه المقارن

References

Ahkam Al-Quran, Abu Bakr Ahmad bin Ali Al-Razi Al-Jassas, edited by/Muhammad Al-Sadiq Qamhawi, published by Dar Ihya Al-Turath Al-Arabi and the Arab History Foundation, Beirut, Lebanon, year (1412 AH - 1992 AD(
Ilam Al-Muwaqi'in 'an Rabbi Al-'Alamin, by Imam Ibn Qayyim Al-Jawziyya, edited by: Muhammad Abd Al-Salam Ibrahim, published by Dar Al-Kutub Al-Ilmiyyah, Beirut, first edition, year (1411 AH - 1991 AD)
Al-Umm, Imam Muhammad bin Idris Al-Shafi'i, published by Dar Al-Ma'rifah, Beirut, (1410 AH).
The Economic Importance of Consumer Protection Legislation, Abdullah Al-Sa'idi, a working paper presented to the Consumer Protection Conference (Legislative Aspects), University of Sharjah, United Arab Emirates, year: 1997 AD.
Commercial Credit and Bank Credit, Fakhr al-Din Aziz, Bank Credit Cards in Islamic Jurisprudence, Fathi Shawkat Mustafa Arafat, Master's Thesis, An-Najah National University, Palestine, College of Graduate Studies, Year: 2007.
The Beginning of the Mujtahid and the End of the Muqtasid, by Judge Abu al-Walid Muhammad bin Ahmad bin Rushd al-Hafid (d. 595 AH), Commentary and Graduation: Muhammad Subhi Hasan Hallaq, Ibn Taymiyyah Library Edition, Cairo, Al-Ilm Library in Jeddah, Saudi Arabia, 1st Edition, Year: (1415 AH).
Bank Credit Cards in Islamic Jurisprudence, Fathi Shawkat Mustafa Arafat.
Balaghat al-Salik li-Aqrab al-Masalik (Al-Sawi's Commentary on Al-Sharh al-Saghir), by Abu al-Abbas Ahmad bin Muhammad al-Khalwati, known as Ibn al-Sawi al-Maliki, Dar al-Maarif Edition.
Al-Binaya fi Sharh Al-Hidayah, by Abu Muhammad Mahmoud bin Ahmad Al-Aini, Dar Al-Fikr edition, Beirut, Lebanon, second edition (revised and with additions), year: (1411 AH - 1990 AD)
Al-Bayan fi Madhhab Al-Imam Al-Shafi’i, by Abu Al-Hussein Yahya bin Abi Al-Khair Al-Omrani Al-Shafi’i, edited by/ Qasim Muhammad Al-Nouri, Dar Al-Minhaj edition for printing and publishing, Beirut, Lebanon, first edition, year (1421 AH - 2000 AD).
Murabaha sale to the one who orders the purchase, Prof. Dr. Rafiq Younis Al-Masry, Journal of the International Islamic Fiqh Academy, fifth session, fifth issue, (2/1133).
Taj Al-Arous min Jawahir Al-Qamus, Sayyid Muhammad Murtada Al-Hussaini Al-Zubaidi, edited by: Dr. Abdul Aziz Matar, second illustrated edition, Kuwait Government Press, year (1414 AH - 1994 AD)
Faisal Islamic Banks Experience, Murabaha Contract, Dr. Shawqi Ismail Shehata.
Graduation among jurists and fundamentalists (a theoretical, applied and original study), Dr. Youssef bin Abdul Wahhab Al-Bahussein, Al-Rushd Library Edition, Riyadh, Saudi Arabia, 1414 AH.
Jurisprudential adaptation of emerging events, Dr. Muhammad Othman Shabir, Dar Al-Qalam Edition, Damascus, second edition, year (1435 AH - 2014 AD(.
The Expert Summary in Graduation of Hadiths of Al-Rafi’i Al-Kabir by Imam Ibn Hajar Al-Asqalani, Dar Al-Kutub Al-Ilmiyyah Edition, first edition, year (1419 AH - 1989 AD(.
Financing Services (a jurisprudential, applied and original study), Abdulaziz bin Saleh Al-Dumaiji, Dar Al-Mayman Publishing and Distribution Edition, Riyadh, Saudi Arabia, first edition, year (1440 AH - 2019 AD).
The Art of Selling and Advertising, Muhammad Rafiq Al-Raqouqi and others, Anglo Egyptian Library Edition, Cairo, Egypt, no edition or date.
Financing of Utility Services in Islamic Banks, Abu Munis Raed Nasri Jamil, Dar Al-Radwan Publishing and Distribution Edition, First Edition, Year: (1434 AH - 2013 AD).
Legal Regulation of Consumer Finance Companies in Light of the Provisions of Law No. 18 of 2020 AD, Dr. Ihab Abdel-Rahman Muhammad Ismail, Research Published in the Journal of the Spirit of Law, Faculty of Law - Zagazig University, Issue 100, October 2022 Edition, Part Two.
- Jami' Al-Bayan in the Interpretation of the Qur’an (Tafsir Al-Tabari), by Imam Muhammad bin Jarir Al-Tabari, Edited by: Sheikh/ Ahmed Muhammad Shaker, Edition of Al-Risala Foundation, First Edition, Year: (1420 AH - 2000 AD).
Al-Jami' li Ahkam al-Quran (Tafsir al-Qurtubi), Muhammad ibn Ahmad al-Ansari al-Qurtubi (d. 276 AH), its hadiths were authenticated by/ Ahmad ibn Sha'ban ibn Ahmad, Muhammad ibn Ayyadi ibn Abd al-Halim, published by Maktabat al-Safa, Cairo, Egypt, first edition, year (1425 AH - 2005 AD).
Hashiyat al-Dasouqi on the great commentary of Sheikh Muhammad ibn Arfa al-Dasouqi on the great commentary of Abu al-Barakat Sidi Ahmad al-Dardir and in its margin the aforementioned commentary with notes by the scholar Sheikh Muhammad Aliish, published by Dar Ihya' al-Kutub al-Arabiyya, Issa al-Babi al-Halabi and partners.
Al-Dirayah fi Takhreej Ahadith al-Hidayah by Imam Ibn Hajar al-Asqalani, edited by: Sayyid Abdullah Hashim al-Yamani al-Madani, published by Dar al-Ma'rifah, Beirut.
Durar al-Hukkam, explanation of Majallat al-Ahkam, by Ali Haidar, edited by: the lawyer/ Fahmi al-Husayni, published by Dar al-Kutub al-Ilmiyya, Beirut, Lebanon.
Islamic Finance Terminology Guide, a group of authors, issued by the Arab Monetary Fund, March 2022.
Sunan Al-Nasa'i, edited by: Dr. Abdel Fattah Abu Ghadah, published by the Office of Islamic Publications, Aleppo, second edition, (1406 AH / 1986 AD), (7/316).
Penalty clause and its impact on contemporary contracts, a comparative jurisprudential study (PhD thesis), researcher/ Muhammad bin Abdulaziz bin Saad Al-Yemeni, College of Education, King Saud University, Kingdom of Saudi Arabia, year: (1425/1426 AH).
Controls of contracts (a comparative study in Islamic jurisprudence and a comparison with positive law and its jurisprudence), Dr. Abdul Hamid Mahmoud Al-Baali, Wahba Library edition, Cairo, Egypt, first edition, 1989 AD.
Contract for providing electronic signature services (comparative study), Abdullah bin Abdulrahman bin Ibrahim Al-Fayez, Master's thesis in comparative jurisprudence, Imam Muhammad bin Saud Islamic University, Saudi Arabia, year: 1433/1434 AH.
Al-Inayah Sharh Al-Hidayah with the margin of Fath Al-Qadir, Akmal Al-Din Muhammad bin Mahmoud Al-Babarti, published by Dar Ihya Al-Turath Al-Arabi, Beirut, year (1340 AH).
Awn Al-Ma'bud Sharh Sunan Abi Dawood, published by Dar Al-Kutub Al-Ilmiyyah, Beirut, Lebanon.
Decisions and recommendations of the Fiqh Council in its seventh session held in Jeddah (1412 AH - 1992 AD(.
The Rules of Islamic Jurisprudence, Abu al-Faraj Abd al-Rahman ibn Rajab al-Hanbali (d. 795 AH), edited by Taha Abd al-Raouf Saad, published by the Azhar Colleges Library, first edition, year (1390 AH - 1971 AD).
Al-Kafi in the Jurisprudence of the People of Medina by Ibn Abd al-Barr, published by Dar al-Kutub al-Ilmiyyah, Beirut, Lebanon, second edition, year (1413 AH - 1992 AD).
Al-Kafi in the Jurisprudence of the People of Medina, by Imam Ibn Abd al-Barr, edited by Muhammad Muhammad Ahid, published by the Riyadh Modern Library, Riyadh, Saudi Arabia, second edition, year (1400 AH / 1980 AD).
Kashshaf al-Qina’ an Matn al-Iqna’, Mansour ibn Idris al-Bahouti, edited by Muhammad Amin al-Danawi, published by Alam al-Kutub, Beirut, Lebanon, first edition: (1417 AH - 1997 AD).
Principles of Financing, Tariq Al-Hajj, Dar Safaa Printing, Publishing and Distribution Edition, 2nd ed., 2016.
Al-Mabsoot, Muhammad bin Ahmad Al-Sarakhsi, Dar Al-Ma'rifa Edition, Beirut, Lebanon, 1414 AH.
Al-Ahkam Al-Adliya Magazine, Magazine Association (printed in Beirut by the Literary Press in 1302 AH).
Al-Majmu' Sharh Al-Muhadhdhab by Al-Shirazi with the Supplement of Al-Muti'i, by Imam Abu Zakariya Muhyi Al-Din bin Sharaf Al-Nawawi, edited and commented on by: Prof. Dr. Muhammad Najib Al-Muti'i, Al-Irshad Library Edition, Jeddah, Saudi Arabia.
Al-Majmu' Wa Fath Al-Aziz and Al-Talkhis Al-Habeer, this collection was printed at the expense of a company of senior scholars of Al-Azhar, along with the second supplement, Al-Salafiya Library, Medina.
Al-Mahalli, by Abu Muhammad Ali bin Ahmad bin Saeed bin Hazm Al-Dhahiri, published by the Al-Munira Printing Administration, Egypt, first edition, year: (1352 AH).
Mukhtar Al-Sihah, Sheikh Muhammad bin Abi Bakr Al-Razi, published by the Department of Dictionaries in the Library of Lebanon, published by the Library of Lebanon, Beirut, year 1989 AD.
Introduction to Islamic Jurisprudence (its definition, history and doctrines, the theory of ownership and contract), Prof. Dr. Muhammad Mustafa Shalabi, published by Dar Al-Jami’iyah, Beirut, tenth edition, year (1405 AH - 1985 AD).
Al-Mudawwana by Imam Malik bin Anas, published by Dar Al-Kutub Al-Ilmiyyah, first edition, year: 1415 AH / 1994 AD.
Murshid Al-Hiran to Knowing the Conditions of Man in Legal Transactions According to the School of Imam Al-A’zam Abu Hanifa, Muhammad Qadri Pasha, published by the Amiri Press in Bulaq, 8th edition, year 1938 AD.
Contemporary Financial Transactions, Prof. Dr. Wahba Al-Zuhaili, Dar Al-Fikr Edition, Damascus, Syria, Fourth Edition, Year: (1428 AH).
Financial Transactions in Islamic Jurisprudence, Originality and Modernity, Dubyan bin Muhammad Al-Dubyan, King Fahd National Library Edition, Riyadh, Saudi Arabia, Second Edition, Year: (1432 AH).
Dictionary of Law, A Group of Authors from the Arabic Language Academy, Edition of the General Authority for Amiri Printing Affairs, Cairo, Year: (1420 AH - 1999 AD).
Dictionary of Jurisprudential Terms and Expressions, Prof. Dr. Mahmoud Muhammad Abdul Rahman, Dar Al-Fadhila Edition, (1/482), Dictionary of Terms of Islamic Sciences.
Concise Dictionary, Arabic Language Academy, Ministry of Education, Arab Republic of Egypt, Year: (1415 AH - 1994 AD).
Al-Mu'jam Al-Wasit, Arabic Language Academy, General Administration of Complexes and Heritage Revival, Arab Republic of Egypt, Al-Shorouk International Library Edition, Fourth Edition, Year (1425 AH - 2004 AD).
Dictionary of the Language of Jurists, Prof. Dr. Muhammad Rawasi Qala'a Ji - Dr. Hamid Sadiq Qunaibi, Dar Al-Nafayes Edition, Beirut, Lebanon, Second Edition, Year: 1408 AH - 1988 AD.
Dictionary of Islamic Sciences Terms, Group of Authors, Riyadh Library Edition, Saudi Arabia, (1439 AH - 2017 AD).
Mughni Al-Muhtaj ila Ma'rifat Ma'ani Alfaz Al-Minhaj, by Sheikh Shams Al-Din Muhammad bin Al-Khatib Al-Sharbini, Edited by: Muhammad Khalil Itani, Dar Al-Ma'rifa Edition, Beirut, Lebanon, First Edition, Year: (1418 AH - 1997 AD).
Al-Mughni, Abu Muhammad Abdullah bin Ahmad bin Qudamah Al-Maqdisi, edited by: Dr. Abdullah bin Abdul Mohsen Al-Turki - Dr. Abdul Fattah Muhammad Al-Helou, Dar Alam Al-Kutub edition, Riyadh, third edition, (1417 AH - 1997 AD).
Consumer Concepts in Light of the Qur’an and Sunnah, Zaid bin Muhammad Al-Rumani, edition of the monthly Da’wat Al-Haqq magazine issued by the Muslim World League - Al-Aloka Network website, thirteenth year, Ramadan (1415 AH), issue (153).
The Concept of Islamic Finance in the Islamic Economy (Fiqh and Economic Analysis), Dr. Munther Qahf, Islamic Development Bank - Islamic Research and Training Institute, King Fahd National Library, Jeddah, (1425 AH).
The Concept of Good Things and Provision in Islam, Dr. Zaid bin Muhammad Al-Rumani, a scientific article published on the Al-Aloka website on the Internet on the date: (10/5/2010 AD - 26/5/1431 AH).
Ownership and the Theory of Contract in Islamic Law, Prof. Dr. Ahmed Farag Hussein, University Publications House, Alexandria, Egypt, 1999.
Al-Muntaqa Sharh Al-Muwatta, by Abu Al-Walid Sulayman bin Khalaf bin Saad bin Ayoub bin Warith Al-Tujibi Al-Qurtubi Al-Baji Al-Andalusi (died: 474 AH), published by Al-Saada Press - next to the Governorate of Egypt, first edition, year: 1332 AH.
Al-Muwafaqat, Abu Ishaq Ibrahim bin Musa bin Muhammad Al-Shatibi, edited by: Mashhour bin Hassan Al Sulayman, published by: Dar Bin Affan, Cairo, Egypt, first edition: (1417 AH).
Talents of the Sublime in Explaining Mukhtasar Khalil, Shams al-Din Abu Abdullah Muhammad bin Muhammad bin Abdul Rahman al-Tarabulsi al-Maghribi, known as al-Hattāb al-Ra’ini al-Maliki (died: 954 AH), Dar al-Fikr edition, third, 1412 AH - 1992 AD.
Encyclopedia of Islamic Jurisprudence and Contemporary Issues, Prof. Dr. Wahba al-Zuhayli, Dar al-Fikr edition, Damascus, third edition, year (1433 AH - 2012 AD).
Kuwaiti Jurisprudence Encyclopedia, Ministry of Endowments and Islamic Affairs, Kuwait, first edition, Dar al-Safwa Printing Press in Cairo, year 1414 AH - 1994 AD.
Encyclopedia of Economic and Statistical Terms, Haikal Abdul Aziz Fahmi, Dar al-Nahda al-Arabiya edition, Beirut, Lebanon, year: 1986 AD.
Website: https://www.firstbankeg.com/11901
Nasb Al-Rayah for the Hadiths of Guidance with its Commentary Bughyat Al-Almai fi Takhreej Al-Zayla'i, by Imam Abu Muhammad Abdullah Al-Zayla'i, edited by: Muhammad Awwamah, Al-Rayyan Foundation Edition, Beirut, Lebanon, year (1418 AH - 1997 AD).
General Theories in Islamic Jurisprudence, Prof. Dr. Ramadan Ali Al-Sharnabasi, Mansha'at Al-Maaref Edition in Alexandria, first edition, year (2000 AD).
Economic Theory from an Islamic Perspective, Prof. Dr. Shawqi Ahmed Dunya, Al-Khariji Library Edition, Riyadh, Saudi Arabia, first edition, year: (1404 AH - 1984 AD).
The Theory of Guarantee in Islamic Jurisprudence, Dr. Muhammad Fawzi Fayd Allah, Dar Al-Turath Library Edition, Kuwait, first edition, year: 1403 AH.
Sunan Al-Tirmidhi, Abu Issa Al-Tirmidhi (d. 279 AH), edited by: Bashar Awad Marouf, Dar Al-Gharb Al-Islami edition, Beirut, 1998 AD.
Dictionary of Language Standards, by Abu Al-Hussein Ahmad bin Faris bin Zakariya (d. 395 AH), edited by: Dr. Abdul Salam Muhammad Harun, Dar Al-Fikr, Arab Islamic Scientific Academy, 1399 AH - 1979 AD.
Al-Furuq, Shihab Al-Din Ahmad bin Idris Al-Qarafi (d. 684 AH), published by Al-Risalah Foundation, Beirut, Lebanon, first edition, 1424 AH - 2003 AD.
Lisan Al-Arab, Jamal Al-Din bin Manzur Al-Masry Al-Ifriqi (d. 711 AH), published by Dar Al-Maaref, Cairo, Egypt.
Al-Misbah Al-Munir, Ahmad bin Muhammad bin Ali Al-Fayoumi Al-Muqri (d. 770 AH), Lebanon Library Edition, Beirut, Lebanon, 1987.
Official Gazette, Issue 11, repeated (K), March 17, 2020.
Marketing Principles, Muhammad Salih Al-Muadhin, Dar Al-Thaqafa and Dar Al-Ilmiyah International Edition, Amman, First Edition, (2002).
Trade Controls in the Islamic Economy, Muhammad Najib Hammadi Al-Ju’ani, Dar Al-Kutub Al-Ilmiyah Edition, Beirut, First Edition, (2005(