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Murābaḥah Penalty Clause is Ribā in Disguise! The Penalty Clause Questions the Deep-rooted Preference for Literal Interpretation over Substantial Interpretation of Ribā

Murābaḥah Penalty Clause is Ribā in Disguise! The Penalty Clause Questions the Deep-rooted... AbstractFollowing the literal interpretation of ribā, jurists have agreed that muḍārabah and mušārakah are legitimate modes of financing. As both arrangements are highly risky to manage in practice, murābaḥah has been introduced as an alternate mode of financing. Despite its extraordinary success, murābaḥah has led to moral hazard in the form of frequent delays in payments and defaults for which Islamic scholars have introduced a penalty clause as discouragement. Examination of the murābaḥah penalty clause instrument suggests that it is ribā, prohibited when interpreted literally. Moreover, the penalty clause has never been enforced in Pakistani courts. This article suggests that the literal interpretation based on the objectives of Sharīʿah (substantial interpretation) will prevent loopholes such as the abuse of the murābaḥah instrument and consequently the penalty clause as well and will lead to substantial compliance with the principles of Islamic finance. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Arab Law Quarterly Brill

Murābaḥah Penalty Clause is Ribā in Disguise! The Penalty Clause Questions the Deep-rooted Preference for Literal Interpretation over Substantial Interpretation of Ribā

Arab Law Quarterly , Volume 35 (1-2): 18 – Jun 24, 2020

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0268-0556
eISSN
1573-0255
DOI
10.1163/15730255-BJA10037
Publisher site
See Article on Publisher Site

Abstract

AbstractFollowing the literal interpretation of ribā, jurists have agreed that muḍārabah and mušārakah are legitimate modes of financing. As both arrangements are highly risky to manage in practice, murābaḥah has been introduced as an alternate mode of financing. Despite its extraordinary success, murābaḥah has led to moral hazard in the form of frequent delays in payments and defaults for which Islamic scholars have introduced a penalty clause as discouragement. Examination of the murābaḥah penalty clause instrument suggests that it is ribā, prohibited when interpreted literally. Moreover, the penalty clause has never been enforced in Pakistani courts. This article suggests that the literal interpretation based on the objectives of Sharīʿah (substantial interpretation) will prevent loopholes such as the abuse of the murābaḥah instrument and consequently the penalty clause as well and will lead to substantial compliance with the principles of Islamic finance.

Journal

Arab Law QuarterlyBrill

Published: Jun 24, 2020

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