SHARIAsource

The defendants, following formal mediation, agreed to settle on the following terms:

1. To pay their primary debt to the plaintiff of IDR 935,224,710, comprising their primary debt (IDR 799,902,502,508), profit arrears (IDR 91,322,202.98), and plaintiff's legal fees (IDR 44 million), payable by 15 March 2015;
2. To make payment directly to the plaintiff, or through their legal advisor or the Purwokerto Religious Court registrar, including the necessary stamp duty;
3. In the event the defendants were unable to make payment, they were to grant the plaintiff permission to auction their secured assets, namely, a parcel of land;
4. The proceeds from any auction would be used to cover the defendants' debt of IDR 935,224,710, with any remaining monies to be transferred to the defendants; and
5. Any incidental costs incurred by the plaintiff were to be borne by the defendants.

The court approved the settlement and ordered the defendants to pay costs.

The plaintiff submitted that, pursuant to a multi-service ijarah financing agreement (dated 13 September 2011), the first defendant, in agreement with the second defendant as his wife, received IDR 250 million from the plaintiff, and agreed to pay an ujrah (fee) of IDR 180 million. The term of the agreement was from 13 September 2011-13 September 2016, and the monies were to be used to cover print media costs to advertise the defendants' business. After the defendants defaulted on repayments, the plaintiff sent to the defendants several reminder notices and a subpoena. Despite being granted these opportunities by the plaintiff to make the necessary payments, the defendants failed to act, even by the time the plaintiff had filed its claim. Accordingly, the plaintiff filed a shari'a economy-related dispute claim, in accordance with art 49 of Law No. 3 of 2006 on the Religious Judiciary, in conjunction with art 55(1) of Law No. 21 of 2008 on Shari'a Banking.

In his written response to the plaintiff's claim, the first defendant explained his own financial hardships, and asserted that the ways in which the plaintiff had sought payment from someone in his predicament were inferior to those of a conventional bank. For example, the first defendant told the court that the plaintiff, which he had authorised to sell four shophouses he owned to pay any debts emerging from this agreement, offered the same price he had received for six other shophouses he had sold five years ago. The first defendant also alleged that the plaintiff had only ever sought its profit from the agreement, an agreement he had never properly understood, rather than inquiring into the defendants' hardships. Moreover, over two years, the first defendant had paid approximately IDR 60 million in interest (bunga), and had been ordered to pay another IDR 257 million, as well as the principal debt, meaning he had had to pay IDR 115 million over two years. The first defendant was astounded when he compared this with what a conventional bank would have charged (0.9-1 percent interest per month). The first defendant also told the court of his excellent credit history with other banks. The first defendant requested that the court dismiss the plaintiff's claim and, in order to repay the debt and to continue to pay the plaintiff in accordance with the agreement, provide him an opportunity to sell his shophouses for a reasonable price, as well as an opportunity for his business to grow.

The court, citing the Qur'an and arts 21(b), 44 and 46 of the Compilation of Shari'a Economy Laws (Kompilasi Hukum Ekonomi Syari'ah), opted to enforce the agreement against the defendants, ordering them to pay IDR 252,393,450.

This statute regulates, among other bankruptcy-related topics:

1. eligibility for declaring bankruptcy;
2. the consequences of bankruptcy;
3. administration of the assets of a person declared bankrupt;
4. creditors;
5. judicial stipulations as to bankruptcy; and
6. activity post-bankruptcy declaration.

This fatwa states that SMS prizes are mubah (permissible), unless they involve one or more of the following, in which case they are haram (forbidden):

1. gambling (maysir);
2. wasteful activites (tabdzir);
3. excessively risky or hazardous activities (gharar);
4. activities that could cause loss to another party (dharar);
5. making false promises to a consumer causing them to fantasise about winning a prize (ighra'); or
6. causing the consumer to spend money outside of their means (israf).

The fatwa also states that it applies to all parties involved, including program organisers, telecommunications providers, senders of the SMS, and other supporting parties.

This fatwa states that personal ownership rights are to be protected by the state and are to be guaranteed in full. No person, including the government, is to reduce, marginalise or limit such rights. In the event of a conflict between personal rights and the public interest, however, the public interest is to prevail.

The government is permitted to revoke personal ownership rights for the sake of the public interest under the following conditions:

1. the government and rights-holder have deliberated, the rights-holder not being coerced at all into making a decision;
2. the rights-holder has been sufficiently compensated;
3. the party responsible for the public interest is the government;
4. the stipulation of the public interest by the People's Representative Assembly (DPR) or Regional People's Representative Assembly (DPRD) takes into account Indonesian Council of Ulama fatwa and opinions; and
5. the public interest may not be transferred for other purposes, especially those commercial in nature.

This fatwa states that fund-sourcing and collection to improve the quality of national sport may not be forced on, or become a burden to, society. Rather, it can be conducted by selling tickets to scheduled sporting events. The price of such tickets may not be excessive and, if the ticket is a prize, its value may not be excessive so as to make people purchase coupons beyond their financial means. Prize tickets must also be subject to conditions that prevent their being on-sold for a profit.

This English-language summary issued by the Acehnese government explains the all-encompassing role of sharīʿa in Aceh. It clarifies that sharīʿa does not apply to non-Muslims, and that its implementation in no way repudiates human rights standards, including freedom of religion.

This fatwa states that a mosque may be used as, for example, an educational facility, meeting room, or child recreation centre, provided that such activities:

1. do not contravene shari'a;
2. always respect the mosque; and
3. do not disturb those praying or performing other rituals (ibadah).

Similarly, hiring out parts of a mosque for wedding receptions, for example, is permitted provided the mosque is treated with respect in the process. These conditions apply to land and objects donated pursuant to a waqf as well.

University of Pennsylvania

Mr. Zafar Hasan, a Muslim of Indian heritage, sued his former employer, Foley & Lardner LLP, under Title VII, alleging discrimination based on religion, race, national origin and color. The plaintiff claimed that his work assignments were cut and he was ultimately terminated because he was Muslim. For support, he points to the cut in his assignments that occurred immediately after 9/11, a comment made by one partner that “those people [Muslims] don’t belong here…they should kick them all out,” a warning by another partner to be careful about displaying articles the plaintiff had written on his view that Islam is a peaceful religion, and the fact that the other two Muslims in his department were either transferred or terminated in the same time period. The defendant company responds that it cut Mr. Hasan’s work and then terminated him due to poor work performance. The Circuit Court reversed and remanded the District Court for the Northern District of Illinois’s grant of the defendant’s motion for summary judgment, concluding that the plaintiff had presented enough direct evidence of religious discrimination to allow the case to move forward.

A Pakistani Muslim hospital employee sued his employer under Title VII, New York State Human Rights Law, and New York City Human Rights Law (after receiving a right to sue letter from the Equal Employment Opportunities Commission (EEOC)), alleging discrimination based on race, religion, and national origin and a hostile work environment. The plaintiff argued that he received negative performance evaluations because he was absent from work on several Fridays and other days in observance of Islamic religious prayer services and holidays, in compliance with Islamic ritual law. The Court concluded that the plaintiff failed to make out a prima facie discrimination claim, as he never articulated any adverse employment action suffered. The Court, however, allowed Plaintiff’s hostile work environment claim to move forward as it raised a material question of fact that should be decided by a jury. 

The plaintiff, a Muslim occupational health physician, sued his former employer, the Department of Veteran Affairs and its Secretary, Jim Nicholson, under Title VII, alleging religious discrimination and retaliation for filing a discrimination claim with the Equal Employment Opportunity Commission (EEOC). He filed the claim after he heard his supervisor refer to Muslims as a threat and after his supervisor’s wife made comments about how she and her husband do not like Muslims and the way they live—presumably referring to his observance of prayers, fasting, and other aspects of Islamic ritual law. The plaintiff discovered that his position was being eliminated sometime after these comments were made, but continued to consult with his former employer about infectious diseases. Three months following his position’s elimination, the plaintiff saw a job advertisement for the same position at his former place of employment and filed a claim with the EEOC for discrimination. Immediately after his supervisor found out about his claim, the plaintiff contends that he was no longer allowed on the property and that other employees were barred from contacting him for consultations. The Court concluded that the timing was questionable enough that a jury could find that the events described were examples of retaliation. The Court reversed and remanded the decision of the District Court for the Southern District of Mississippi to grant Defendant’s motion for summary judgment, allowing the case to go forward. The parties ultimately settled the case, and the case was closed in December of 2008.

New York University, School of Law

This course will provide an overview of the theoretical doctrines that give rise to Islamic finance and an introduction to its contemporary practice in various market contexts. We will begin with the religious impulse that gives rise to Islamic finance, including, different Islamic critiques of conventional finance and why Islamic finance is claimed to be a superior model. We will then turn to classical Islamic commercial law, and study the two principle classical doctrines of Islamic commercial law that seem to mandate the creation of alternative financing models, ribā (often translated, incorrectly, to “usury”) and gharar (often translated, incorrectly, as “speculation”). We will also cover the basic building blocks of Islamic commercial law, studying rules governing sales, leases, loans, pledges and other fundamental commercial law relationships as well as Islamic rules governing business organizations such as general and limited partnerships.

After completing an overview of historical doctrines, we will turn to how these doctrines were modernized to produce a “modern” Islamic commercial law, something that enabled the rise of contemporary Islamic finance. We will consider a broad range of Islamic financial contracts across various markets, including, consumer banking and finance, Islamic deposit taking banks, Islamic corporate finance (e.g., sukuk, sometimes called “Islamic bonds”) and Islamic derivatives. We will then consider the legal structure undergirding Islamic finance and use it as an example of the advantages/disadvantages of public ordering versus private ordering. The course will conclude with different critiques of Islamic finance.

The Court considered questions of venue for a case related to Islamic financial instruments. The defendant, Dar al-Maal al-Islami Trust, petitioned the Court to compel the plaintiff, Vinewood Capital, to follow the arbitration clause of a profit-sharing (mudaraba) agreement. The Court determined that there was no single agreement listing both parties as signatories, and it thus refused to uphold the arbitration clause.

The defendant, Dar al-Maal al-Islami Trust, sought to enforce the terms of an arbitration clause, which required arbitration in the Bahamas upon disputes surrounding an Islamic financial profit-sharing arrangement known as a mudaraba agreement. The Court found that the clause was not enforceable, as Vinewood Capital was not a signatory party to the agreement. This decision was affirmed in 2008 by the U.S. Court of Appeals for the Fifth Circuit.

The cassation applicant sought to challenge the decision of the Medan High Religious Court Decision No. 127 of 2015 on the grounds that the Medan High Religious Court had incorrectly applied the law and that its reasoning was not based on legitimate and sufficient grounds. The Supreme Court dismissed the appeal, stating that the non-issuance of a building permit (Izin Mendirikan Bangunan) did not constitute a force majeure that could thereby release the cassation applicant from his obligations pursuant to the agreement.

These materials document, state by state, what each of the sharīʿa states is doing in respect of the collection and distribution of zakāt and the management of pious endowments (waqf, pl. awqāf). The materials include early proposals by Sharia Implementation Committees or Councils of Ulama for official zakāt organizations, including the doctrinal background; all statutory materials related to Zakat and Endowment Boards, Commissions, Committees, and Funds; organizational and regulatory materials issued by such bodies; a number of official reports on their activities, including types and amounts of zakāt collected and distributed and endowments established; and other information collected in the course of fieldwork.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

Al-Mughnī is a commentary on al-Khiraqī's (d.945) Mukhtaṣar, a treatise on Ḥanbalī law. The excerpt in question deals with the question of sharecropping, where ibn Qudāma explain's his madhhab's position and defends it against potential detractors. 

Source:  Abd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), p. 304.

 Abd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), pp. 220-221.