Договор исламской рассрочки (мурабаха): понятие, существенные условия и сравнительно-правовой анализ

Abstract

The authors subject to legal analysis one of the varieties of Islamic financial transactions — the Murabaha contract. At the same time, the legal characterisation of the Murabaha treaty is given from the standpoint of Islamic law in the comparative context of Russian law. In this connection, the purpose of the work is to characterise the murabaha contract, its essential conditions and to identify the main criteria for similarities and differences in approaches to this type of transactions in Islamic law and Russian civil legislation. The main difference between murabaha contracts and a contract of sale with instalment payment under Russian law is that, according to Russian law, the goods are considered sold to the buyer on credit, i.e. such a transaction implies a loan element and the possibility of obligating the buyer to pay interest on the overdue amount (Article 488 of the Civil Code), which, in turn, is forbidden by sharia. The murabaha contract refers to a type of transaction between the parties in which the sale of goods at a price equal to the purchase price plus a certain agreed margin occurs. Such contract involves no hidden interest, fines, penalties and commissions, i.e. there is no place for usury (riba). All this guarantees minimisation of the risks of disputes for both parties as much as possible, assumes the good faith of the participants in the transaction, which increases the confidence of the parties to each other and to the business as a whole. In this connection, such a financial model is defined as ethical financing.