Banking Contracts Research Articles

Implementasi Kebebasan Berakad Pada Akad-Akad Perbankan Syariah Di Kota Pekanbaru Dalam Hukum Islam

freedom of contract in terms of making/entering conditions in it is only a quasi-freedom of contract. This means that freedom of contract in Islamic law has not been fully implemented in existing contracts in sharia banking in Indonesia. Because on the one hand, in various contracts there are clauses/conditions that contain elements of freedom of contract based on Islamic law, but on the other hand they still contain elements of freedom of contract based on the conventional system. This is because the restrictions on freedom of contract in Islamic law are not fully respected by BUS. Implementation of freedom of contract in making clauses/entering conditions in the contract in BUS customers cannot yet exercise full freedom of rights because they receive a standard contract from a sharia bank. If viewed based on the theory of maslahah al-murlah, the clauses/conditions in the standard contract do not fully meet the criteria of benefit and are not in accordance with the concept of freedom of contract in Islamic law

Resolution of Credit Agreement Disputes Due To Force Majeure From The Perspective of Syariah Banking

This study analyzes the impact of recession on credit contracts in Islamic banking, especially in e-commerce activities. Murabahah-based credit contracts, which are used as financing products based on credit sales, involve the customer's obligation to pay installments according to the agreement. However, recessionary conditions create difficulties for customers in fulfilling their obligations, thus creating the potential for payment delays that can be detrimental to the bank. From an Islamic legal perspective, conditions beyond human control, such as recession, can be categorized as force majeure, which provides a legal basis for customers to delay payments. Legal resolution of this situation requires an approach that accommodates the principle of justice, where the imposition of fines for delayed payments is often viewed as a form of usury by some scholars, because it is considered an addition that is not in accordance with Islamic principles. This study aims to provide a comprehensive understanding of dispute resolution based on the concept of murabahah in Islamic banking, by considering the impact of recession on the sustainability of credit contracts, while offering solutions that are in line with Islamic legal principles and protection of the rights of customers and banks.

Unfair Online Lending Practices in the Light of Judicial Practice

The author examines unfair practices of providing loans using a remote method of interaction with the borrower. It proves that the introduction of new technologies into banking often makes it even more difficult for citizens to understand the content of concluded contracts. He notes that one of the problems of using the remote format of concluding contracts in banking was the use by third parties of various fraudulent schemes to gain access to the personal accounts of bank customers and issue loans to them, followed by transfer to the accounts of third (unidentified) persons. Banks, formally complying with the requirements established for the conclusion of consumer loan agreements, actually deprive customers of the opportunity to familiarize themselves with the terms of lending, and also do not always check the compliance of the nature of the use of funds the usual nature of account transactions.

AS ENTRELINHAS DO CONTRATO BANCÁRIO: UMA ANÁLISE DOS RISCOS DE TAXAS ABUSIVAS

This study aimed to analyze, through a bibliographic review, the legislative framework ruling banking contracts in Brazil, highlighting the inconsistencies stemming from abusive fees and onerous clauses in banking operations. In Brazil, the definitions of abusive clauses in contracts are determined by the Civil Code and the Consumer Defense Code, under which agencies such as the Central Bank of Brazil (BCB), the Delegacia do Consumidor and PROCON operate to uphold the principle of good faith. It was concluded that the imposition of a series of contractual parameters inaccessible to borrowers by financial institutions generates inequities and disparities in treatment that are incompatible with the economic order. The research might provide preventive and protective precautions to consumers confronted with banking contracts, this way assisting at the divulgation of secure economic practices and avoiding the overcrowding of the Judiciary with processes entailed by leonine clauses and abusive fees.

Pengawasan Pelaksanaan Akad Notaris pada Perbankan Syariah oleh Dewan Pengawas Syariah

The rapid development of Islamic banking institutions must be supported by effective supervision so that operations are more efficient, so the Sharia Supervisory Board was formed by the National Supervisory Board (DSN) to oversee the application of sharia principles in Islamic banking. This research aims to find out the role of the Sharia Supervisory Board in supervising Islamic financial institutions in Indonesia and the Sharia Supervisory Board (DPS) related to supervising the implementation of contracts by Notary. The method used in this research is doctrinal legal research method using secondary data related to Islamic banking. The results of this study indicate that DPS supervision in Islamic banking is not optimal, which has an impact on the supervision of contracts in Islamic banking, as seen from the many problems in Islamic banking in the form of contract violations contrary to sharia principles. The conclusion of this problem is that the Sharia Supervisory Board (DPS) has not optimally carried out its supervision according to its rules to ensure compliance with sharia principles, as supervisors of Islamic banks must oversee every stage of the financing process to ensure the legal protection of their customers.

Sharia Banking Contract Model: Alternative Financing For the Agricultural Sector in Indonesia

Introduction: In the Islamic conceptualization, banking has a central position as a financing institution for every Muslim that is free from ribawi elements. Sharia banking has made various efforts, such as formulating innovative products to meet credit needs. Unfortunately, these efforts are hampered by several factors, especially the mode of Sharia banking and the limited knowledge of Sharia banking staff regarding fiqh. One of the Sharia banking products that cannot be implemented until now is contracts sallam. Though Salam contract can accommodate credit needs, especially for farmers, promptly. In this case, of course, Islamic banking needs to take a role and take action to meet the needs of these farmers. Objectives: So, this paper aims to elaborate and formulate a contract model salam in banking by considering the problems faced by sharia banks and farmers. The formulation of the problem is how the contract model salam in sharia banking for agricultural financing in Indonesia. Method The approach used in this paper is qualitative with the type of research being the analysis content Results: The result of this research is that a contract salam can be implemented in Sharia banking. However, it requires an integration model from Sharia banking to microfinance institutions so that contract financing salam can be accommodated very well. Implications: It is hoped that this research will have an impact in formulating contract models salam which so far cannot be implemented in sharia banking.

Akad-Akad Transaksi Perbankan Syariah Dalam Tinjauan Studi Hadits

This study aims to describe and analyze 1) contracts in Islamic banking, 2) hadith about contracts in Islamic banking transactions, 3) implementation of hadith in Islamic Banking transactions. The research method uses the interpretation research method, with a descriptive analysis method. The hadith studies used in this study are in the following arrangement: 1) hadith texts and sanad hadith, 2) translation of hadith, 3) brief biography of sanad / hadith scholar, 4) analysis of hadith, 5) implementation of hadith in Islamic Banking transactions. The results of the study 1) contracts in Islamic Banking transactions consist of a) Mudharabah, b) Musyarakah, c) Murabahah, d) Ijarah, e) Qard al Hasan, f) Wakalah, g) Kafalah; 2) In general, hadith in the context of Islamic banking transactions serves to show the validity of a contract and provide guidance in carrying out these transactions in sharia. The hadith is also evidence of the initial agreement between the parties involved in Islamic banking transactions and serves as a handle in resolving disputes in the event of a dispute between them; 3) In mudharabah and musyarakah agreements, banks and customers share risks and benefits with each other. It aims to encourage partnerships and cooperation in business, as well as minimize the risk of failure. In its application, Islamic banking follows islamic sharia rules and principles, including in determining profits and risks that must be shared fairly between banks and customers.

Jurisprudential Study of the Client's Infringement of the Banking Contract

Using bank facilities other than the subject of the contract is one of the basic challenges in banking, especially Islamic banking. Sometimes, customers mention some things to get bank facilities during the contract. Still, after the contract, they allocate money outside of what was agreed in the contract, and even in some cases, they may have the intention of deceiving the bank and intending to violate the contract from the beginning. This article raises the question of if the customer violates the contract, what is the obligatory sentence and status sentence of it? It seeks to determine the Sharia ruling on this issue. To find the answer to this question, the hypothesis of obligatory haram and invalidity of the contract has been put to the test, and an attempt has been made to clarify the Sharia ruling of this act by using jurisprudential sources and the opinions of jurists. In this research, the qualitative method of content analysis has been used and an attempt has been made to analyze sources and jurisprudential texts based on scientific theories. The results of the research show that compliance with the contract is mandatory and violation of it is considered a violation of the permission of the owner (bank) and makes the recipient of the facility to be the guarantor for any damages. Jurisprudents differ about the validity of the contract in case of the customer's violation, but the benefits from the capital will belong to the customer, and the customer's possession of these benefits is subject to the bank's permission.

The implementation of Maqashid Sharia: heterogeneity of scholars' fatwas towards Islamic banking contracts

This study aims to analyze the differences in fatwas among scholars in the Middle East and South East Asia (Indonesia and Malaysia) towards various Islamic Banking Contracts products and assess the implementation of maqâshid al-sharia within the variety of fatwas mentioned. This study employed a qualitative approach and fatwas from the Middle East and South East Asia as the primary data, while the secondary data were obtained from books on Muaamalah Fiqh and Islamic Banking. The data were garnered based on a literature review with a content analysis technique. The descriptive-inductive method with a reflective way of thinking is used for data exposure, leading to the following findings: 1) There are differences in fatwas towards three Islamic Banking contracts: a) The determination of the deposit contract in the Middle East is stipulated in a qardh contract in a non-investment account; meanwhile, in South East Asia it is stipulated in a wadiah contract; b) in terms of Murâbahah contract, some of the Middle East scholars forbid it, while, some of South East Asian scholars and few scholars from Middle East allow it, and; c) in terms of the al-Ijarah al-muntahiyyah bi al-tamlik, most of Middle East Scholars forbid it, but South East Asian scholars allow it; 2) The implementation of maqâshid sharia within differences of fatwas among scholars has been appropriately implemented in accordance with Islamic law specified under contracts in Islamic banking products in Muslim countries.

THE APPLICATION OF PROMISE (WA‘D) IN ISLAMIC BANKING CONTRACTS IN MALAYSIA: A MASLAHAH PERSPECTIVE

The concept of promise in Islamic banking contracts is a novel tool that has been introduced as a result of recent advancements. Wa’d has grown in popularity in recent years because it provides great flexibility. It was primarily developed by Malaysia’s Islamic banks for product structuring. However, there are issues arising from this principle, which is considered to be against Shariah and merely intended to preserve the bank’s interests, which is of course, contrary to Maqasid al-Shariah. The purpose of this study is to look into the significance of the promise concept in Islamic banking contracts, taking into account the maslahah and mafsadah principles recommended in Maqasid al- Shariah. The study uses a qualitative approach as it allows a more in-depth understanding of the subject matter. Data were gathered using published literature and information from the official website of Bank Negara Malaysia (BNM). A semi-structured interview was conducted with three Shariah experts from the Shariah Advisory Council of Bank Negara Malaysia (SACBNM) and two industry practitioners from Bank Islam Malaysia Berhad (BIMB) and Maybank Islamic Berhad (MIB). The data obtained was analysed using the content analysis approach. In sum, the examination of Islamic law sources and discussions with Islamic scholars revealed that the use of the principle of promise in Islamic banking transactions can benefit the micro and macro economy. The concept of promise in Islamic banking contracts can benefit both customers and Islamic banks, particularly in terms ofmeeting consumer needs, generating profit for Islamic banks, as well as contributing to the country’s development (maqasid kulliyah).

Contracting Balance in Islamic Banking Mudharabah Agreements in Indonesia: Islamic Economic Perspective

The purpose of this study is to determine the position of mudharabah contracts in fiqh and the practice of mudharabah contracts in Islamic banking in Indonesia in general. The research method used by the author in this research is literature review, data collection through several journals, and several other references, then data analysis uses review analysis using data reduction, systematic and objective. The results of this study reveal that the mudharabah contract is a collaboration between the owner of the funds or investors (shaihb al-mal / rabb al-mal / investors) and the manager of capital (mudharib) to do business on the basis of a profit sharing ratio. Although mudharabah contracts have no basis in the Koran or implicit sunnah, they were used to carry out trade by the early generations of Muslims. Contracts are developed by the Fuqaha under conditions on his behalf based on general sharia principles of fairness. Islamic banking practices in carrying out mudharabah contracts as financing in the case of mudharabah contracts are one of the banking products, namely in the form of time savings, for example hajj savings, sacrifices, and special savings (special investments)

О ПРАВОМЕРНОСТИ ОДНОСТОРОННЕГО ИЗМЕНЕНИЯ ДОГОВОРА БАНКОВСКОГО СЧЕТА ФИНАНСОВОЙ ОРГАНИЗАЦИЕЙ И ПОРЯДОК НАДЛЕЖАЩЕГО УВЕДОМЛЕНИЯ КЛИЕНТОВ О ЕГО ИЗМЕНЕНИИ / ON THE LAWFULNESS OF UNILATERAL AMENDMENT OF A BANK ACCOUNT AGREEMENT BY A FINANCIAL ORGANIZATION AND THE PROCEDURE FOR DULY NOTIFYING CLIENTS OF ITS AMENDMENT

Banking services have become an integral part of our life, providing an opportunity to exaggerate our own financial resources and funds, to obtain a loan or to use such various banking services as money transfers, various kinds of payments, issuance of bank cards, etc. The legislation of the Republic of Armenia does not establish a barrier on changing the terms and conditions of banking services by financial organizations. Any amendment of such agreement should be made in a form that allows to unambiguously establish the client's consent to service with new, changed conditions. One of the most widespread violations of consumer rights in the field of banking services in the Republic of Armenia is the practice of banks, which unilaterally change the original terms and conditions of contracts with their customers without duly notifying them about it. This is often accompanied by the fact that the amended terms and conditions of the contract are published by financial organizations on their official websites, arguing that the clients are duly notified of unilateral changes in the terms and conditions of the banking contract, as the new changes are freely available. Taking into account the discovered practices of unilateral introduction or increase of commission fees by financial organizations (which were not initially set in the agreement or were set in a smaller amount) for transactions within the framework of bank account agreements, it seems necessary to explore the following aspects: 1. Legality of unilateral change of a bank account agreement by a financial organization. This research will be aimed at determining the compliance of the financial organization's actions with the legislation of the Republic of Armenia and the terms and conditions of the existing bank account agreements. 2. The procedure of proper notification of clients on changing the bank account agreement. This article will investigate the procedure and form of notification of customers on forthcoming changes in the terms and conditions of the bank account agreement, as well as determine whether these notifications comply with the requirements of the legislation and provide sufficient clarity and accessibility of information to customers.

Sophisticated banking contracts and fragility when withdrawal information is public

I study whether self‐fulfilling bank runs can occur when banks use sophisticated contracts and withdrawal decisions are public information. In a finite‐agent version of Diamond and Dybvig (1983) with correlated types, I first present an example in which a bank run perfect Bayesian equilibrium exists. However, its existence relies on off‐path beliefs that are unreasonable in terms of forward induction. To discipline beliefs, I use forward induction equilibrium (Cho (1987)) as the solution concept. I show that, whenever the allocation rule is strictly incentive compatible, the truth‐telling strategy is the unique forward induction equilibrium in the withdrawal game, and no bank run occurs. Therefore, with forward induction, sophisticated contracts can prevent bank runs when there is public information about withdrawal decisions.

Murabaha Contract Dispute Resolution Procedure

This study is to analyze the pattern of dispute resolution in Murabahah contracts in Islamic banking. The results show that there are several commonly used dispute resolution patterns, including negotiation, mediation, and arbitration. Factors that influence the outcome of dispute resolution include trust, communication and fairness. This research provides an in-depth understanding of dispute resolution patterns in Murabahah contracts and can be a reference for Islamic banks in resolving disputes that arise. The purpose of this study is to identify and analyze the pattern of dispute resolution in Murabahah contracts in Islamic banking. This study also aims to understand the factors that influence the results of dispute resolution and provide recommendations for Islamic banking in overcoming disputes that arise. The problem to be answered in this research is how the pattern of dispute resolution in the Murabahah contract in Islamic banking. This research uses a descriptive qualitative method with an interpretative approach. Data were obtained through literature studies and document analysis related to dispute resolution in Murabahah contracts. The interpretative approach is used to understand and analyze the pattern of dispute resolution in depth, as well as the factors that influence the outcome of dispute resolution. Based on the analysis, it can be concluded that the pattern of dispute resolution in Murabahah contracts in Islamic banking includes negotiation, mediation, arbitration, and reconciliation. Factors such as trust, communication, fairness, and understanding of sharia principles influence the outcome of dispute resolution.

Contingent Contracts in Banking: Insurance or Risk Magnification?

AbstractWhat happens when banks compete with deposit and loan contracts contingent on macro‐economic shocks? The private sector insures the banking system efficiently against crises through such contracts when failing banks go bankrupt. When risks are large, banks may shift part of the risk to depositors who receive state‐contingent contracts. In contrast, when failing banks are rescued, new phenomena such as risk magnification emerge. Depositors receive noncontingent contracts, while loan contracts demand high repayment in good times and low repayment in bad times. Banks overinvest and generate large macro‐economic risks, even if the underlying productivity risk is small or zero.

IMPLEMENTASI AKAD MURABAHAH DAN PERMASALAHANNYA DALAM PERBANKAN SYARIAH

Murabahah is a sale and purchase contract with additional profits in accordance with the agreement. This study aims to further analyze the application of murabaha contracts in Islamic banking, as well as answer how the murabaha concept actually is and then look at the implementation of murabaha financing in banks whether it is appropriate based on sharia principles or not. This study used a qualitative descriptive research method through a library study data collection technique. As for the discrepancies found in the application of murabahah financing in Islamic banking, namely regarding violations related to milkiyah requirements. The results of the study show that the implementation of murabahah contract financing does not meet the pillars and conditions of sale and purchase in accordance with sharia principles. If the bank wishes to represent the customer, the solution is that the item must change ownership, the object of the transaction must be fully controlled by the bank before making a transaction.

Hedging With Futures

This research explores the utilization of wavelet transform decomposition as an effective tool for hedging in the Indian stock market, particularly focusing on hedging with index futures contracts. Utilizing daily data obtained from the National Stock Exchange (NSE) of India spanning from 2010 to 2022, the study investigates the lead-lag relationships, correlations, and hedge ratios across different time scales through the wavelet transform method. The findings indicate a clear relationship between the Nifty 50, Nifty Bank, and Index futures in both short and longer time frames. However, in intermediate time scales, the Nifty Bank contract exhibits a leading position in the market. The correlation analysis underscores that time plays a crucial role in determining the variations, resulting in a wide range of correlations. The effectiveness of hedging, measured by the hedge ratio, displays an increasing trend across different time zones.

Novation as a remedy against abusive clauses of bank credit contracts

The purpose of this article is to research the possibility of the legal institution applying the novation regarding the abusive clauses in the bank credit contracts to save the bank contract in cases where the declaration of the abusive nature of the essential clauses could lead to the total ineffectiveness of the credit contract. Also, through this article, we propose to research whether or not, in relation to the rules applicable to novation, there are impediments to the novation of obligations stemming from abusive clauses, under the conditions in which they are considered null and void and whether there is a possibility that the initiation of steps to achieve the novation may not have a freely consenting character.

Особливості укладання банківських договорів у мережі інтернет

Abstract. In the context of current national legislation and regulations of the European Union, the article examines the theoretical and practical principles that determine the peculiarities of concluding banking contracts on the Internet using modern web interfaces and similar mechanisms (primarily, click-wrap and browse-wrap contracts) in the light recognition of reality. The methodological basis made up of general and private methods of scientific knowledge. The general scientific method of dialectical cognition, formal-dogmatic, comparative-legal method, linguistic methods, methods of deduction, induction, analysis and synthesis were used in the research process. The subject of the study is the norms of civil law on the contract, the norms of banking law on the conditions of certain types of banking contracts, the procedure for their conclusion and execution. It noted that the actions of the right holder of the program, including the bank, with the aim of further concluding an electronic contract on certain terms with unspecified counterparties, should be qualified as a public offer. Acceptance of this offer must create rights and obligations for the person who is the right holder of this program, regardless of his awareness of the fact of concluding such an agreement. The need for special legal regulation of the procedure for concluding banking contracts on the Internet substantiated. The procedure for concluding these contracts can found in the instructions of the National Bank of Ukraine, which defines the requirements for the banking institution regarding the additional identification of clients in the procedure for concluding banking contracts in the form of an Internet bank. The use of a smart contract requires a legal framework that would define the legal nature, concept and legal mechanism of a smart contract. An offer for the conclusion of a contract received in the personal account; the client accepts it using the actions provided in the software, which can be equated to a qualified electronic signature.

Islamic Financial Characteristics and the Sustainability of Islamic Banking in Indonesia: Challenges and Opportunities

This research aims to examine the implementation of Islamic finance in Islamic banking in Indonesia based on the characteristics of Islamic finance, namely Tauhid (Monotheism), Adl (Justice), Nubuwwah (Prophethood), Khilafah (Stewardship), and Ma’ad (Afterlife). This study also aims to serve as a means for the Indonesian public to obtain information related to the application of financial systems in Islamic banking. The researcher employs a qualitative research method, using secondary data sourced from literature, including journals, articles, documentation, written texts, and relevant materials related to the research topic. The results of this study indicate that Islamic banks indeed practice their activities in accordance with Sharia regulations. The five values or characteristics of Islamic finance serve as the main foundation in its implementation. Firstly, in the concept of Tauhid, leaders consistently maintain their devotion to Allah. Moreover, Islamic banks make all policy decisions based on the Qur'an and Sunnah (traditions of the Prophet). Secondly, in terms of Adl, this principle is evident in the implementation of Islamic banking contracts, which do not prioritize personal gain in their collaborations. Thirdly, the principle of Nubuwwah, which prohibits monopolies and encourages cooperation in community building, aligns with one of the practices of the Prophet Muhammad during his time. Fourthly, Khilafah, through the practice of Islamic banking involving zakat contributions from its activities, demonstrates that Islamic banks in Indonesia do not forget their obligation to contribute to a just economy. Lastly, Ma’ad; Islamic banks always consider the ultimate outcome of their activities, as everything they undertake will be rewarded or punished in accordance with their deeds.