PENERAPAN HUKUM KONTRAK PADA USAHA ASURANSI SYARI’AH MENURUT FIQIH MU’AMALAH (STUDI DI PT ASURANSI TAKÂFUL KELUARGA CABANG MALANG)

Abstract

The research aimed to describe and analyze the application of contract law and engagement law at syari’ah insurance according to Muamalah Fiqih. Study focus was discussion about three things, mechanism of contract making (akad) between a syari’ah insurance company and customer, factors caused the removal of an engagement and law causal, and the last, what became the discussion of this research was about how to conclude dispute when there was one side, between company or customer did agreement violation. The research used socio­juridical approach which saw law as social phenomena happened in society, according to written norms made and regulated by institution or officer who has competency as the regulation in law about engagement. Sociological approach tend to see the reality existed. Analysis method used was qualitative descriptive, that was describing and presenting field condition or reality about akad mechanism or engagement in Islamic insurance, then concluded in an explanation related data with existing theory and rule, so there would be found conclusion about the reality existed inside. The research location was PT. Asuransi Takaful Keluarga Malang Branch. The research were: (1) contract mechanism at PT. Asuransi Takaful Keluarga consisted of several phases, from muamalah fiqh presented by the legal condition of agreement, there should be no contrary and legal. But from the perspective of agreement regulation according to Book of Civil Law, there would be a difference, that was age limit permitted by Book of Civil Law, considered as mature. The measurement was individual whose age 21 years or married accordingto Section 330 Book of Civil Law. While in Syari’ah Insurance, the minimum age was 18 years old. In Syari’ah insurance, there were two members accounts, they were: (a) participant Account and (b) Participant Special Account. The division was done to answer the question about clearness (gharar) in conventional insurance practice from claim payment side. (2) things caused the violation of agreement in insurance of PT. Asuransi Takaful Keluarga had written in general conditions of individual policy. Some of them were: (a) dishonest information, statement, and explanation. (b) in the next future, after the agreement rule, found that the statement in form and the other supporting documents considered incomplete or fake or fake intentionally. (c) the expired agreement’s date. (d) members did all fund taking. (e) member died. In Mu’amalah fiqih, an agreement could be ended when it reached the purpose, expired. Beside, the agreement ended by cancellation (fasakh). The cause of fasakh were: (a) cancelled since there was incorrect fact according to syara’, like violation of agreement. In Book of Civil Law, it was regulated in section 1446 Book of Civil Law; (b) caused by khiyar, wheter khiyar rukyat, defect in condition or committee. While in Book of Civil Law, according to section 1265 Book of Civil Law, cancellation was a condition, when it was fulfilled, it would stop the agreemtn and brought everything in previous condition, just like there was never an agreement. (c) one party, by the support of another party did cancellation since his/her regret about the agreement. This kind of fasakh called fasakh iqallah. So, whether in mu’amalah fiqih or Book of Civil Law, the expired or cancellation of agreement has no difference.(3) the way to solve the first first dispute was by deliberation or as­sulhu between parties. They could chose to conclude the dispute through arbitrage or alternative dispute resolution as regulated in Law No.30/1999 about Arbitrage and Alternative Dispute Resolution or in mu’amalah fiqih called tahkim. The third was through court. In this, Religion Court, as stated in Law No.3/2006 about amandment of Law No.7/1989 about Religion Court, widen the authority of Religion Court as one of Court institution who owed judge authority to maintain law and justice for Islamic persons. In Syari’ah insurance, from its existence until now, there was never any dispute between customer and insurance party.