Hizbut Tahrir Indonesia Melanjutkan Kehidupan Islam
By : Muhammad Siddiq al-Jawi (Hizbut Tahrir Indonesia)
Definition of Hybrid Contract
The term Hybrid Contract is English translation of the original terms in Arabic, namely: al-‘al-uqud murakkabah, al-uqud ‘ al-maliyah al-murakkabah, al-jam’u bayna al-‘uqud, and damju al-‘uqud. The term al-uqud ‘al-murakkabah used by Nazih Hammad in his book Al-‘Uqud Al-Murakkabah fi al-Fiqh al-Islami, p.7. The term al-‘uqud al-maliyah al-murakkabah used by Abdullah al-‘Imrani in his book Al-Uqud al-Maliyah al-Murakkabah, p. 46. The term al-jam’u bayna al-‘uqud used by AAOIFI in the book Al-Maa’yir Al-Shar’iyyah (Shariah Standards), 2010 edition, p. 347. While the term damju al-‘uqud used by Ismail Shandi in his book Al-Musharaka al-Mutanaqisah, p. 17-18.
Hybrid contract, according to the one who coined the term was defined as an agreement between two parties to carry out a contract/muamalah that includes two or more, such as buy-sell agreement with ijara, sale and purchase agreement with the grant and so on, so that all the legal consequences of the contract or the joint contract, and all rights and obligations it creates, is considered a single entity that cannot be taken apart, the same position with the legal consequences of one contract. (See: Nazih Hammad, Al-‘Uqud Al-Murakkabah fi al-Fiqh al-Islami, p. 7; Abdullah al-‘Imrani, Al-Uqud al-Maliyah al-Murakkabah, p. 46).
Hybrid contract application in Islamic financial institutions are many and varied. Islamic banks employs such contracts called Al-Murabahah li al-Aamir bi ash-Shira` (towards Buyer To Purchase / Deferred Payment Sale). This contract involves three parties, namely the buyer, financial institutions, and the seller. Process: (1) buyers (clients) request the financial institution to buy the goods, eg, motorcycles, (2) and financial institutions buy goods from the seller (bike dealer) in cash, (3) and financial institutions sell the goods to the buyer at a higher price, either in cash, installment, or in some stages. (Shafii Antonio, Islamic Bank from Theory to Practice, p.107; Ayid Sha’rawi, Al-Masarif al-Islamiyah, p. 412).
In this type of Murabahah, there are two combined contract: First, purchase agreement between financial institutions with the seller (bike dealer). Second, the sale and purchase agreement between financial institutions and the buyer (customer).the two contracts is incorporated into one contract.
Needs to be noted here that the the type of Murabahah mentioned above is not exactly the same as the original murabaha, which is the sale and purchase at a price with the added profit that is known and agreed upon by the seller and buyer. So in original Murabahah there are only two parties, i.e seller and buyer, while in Murabahah used in Islamic banks, there are three parties, ie seller, buyer, and Islamic financial institutions. (Salah Abdullah Ash-Shawi & Mushlih, Maa Laa Yasa’u Al-Tajiru Jahlahu, p. 77; Abdur Rouf Hamza, Al-Bai ‘fi al-Fiqh al-Islami, p. 15; Ayid Sha’rawi, Al-Masarif al-Islamiyah, p. 399).
Another example of application of hybrid contract is a contract to financing Hajj, which combines contract qardh (debts) with ijara contract (hajj services). Another example is also islamic pawn broker which combine rahn (pawn broker) with ijara contract ( services to take care of pawning goods). Another example is the contract of Takaful (islamic insurance), which combines the grant contract (tabarru ‘) with ijara contract (insurance premium fund management services), or sometimes combined with the third contract that is shirkah mudaraba. Another example is the leasing contract of sharia, or IMBT (Ijarah Muntahiyah bi Tamleek), which combines Ijarah contract (leasing assets) with a grant or a contract of sale and purchase of assets at the end of the contract. In short, the application of hybrid contract is many and divered in contemporary muamalah/contracts.
Hybrid Contract in Shariah Law
There are khilafiyah (difference of opinion) among scholars about whether hybrid contract is allowed. First, the opinion that allow it. It is the opinion of Imam Ash-hab of the Maliki school (Hithab, Tahrirul Kalam fi Al-Iltizam, p. 353), Imam Ibn Taymiyyah also the opinion of the Hanbali school (Ibn Taymiyyah, Majmu’ul Fatawa, Vol. 29, p. 132), and Imam At-Tasuli opinion, in his book Al Bahjah, Vol. 2, p. 14.
The argument of this opinion is the shariah principle (qawaid fiqhiyyah), which reads :
الأصل في الإشياء الإباحة ما لم يرد دليل التحريم
“The origin rules of muamalah is allowed, unless there is proof that shows its prohibition.”
Based on this principle, combining two or more contracts is permissible because there is no evidences which forbid it. Eventhough there are texts which literally prohibit the merger of two contract, they are not understood as an absolute prohibition, but prohibition due to other prohibited matter that accompanied the contracts such as gharar (uncertainty), usury, and so forth. (Ismail Shandi, Al-Musharaka al-Mutanaqishah, p. 18).
Second, the opinion which prohibits hybrid contract. It is the opinion jumhur (majority) scholars. It is the opinion of the Hanafi school of thoughts (al-Marghinani, Al-Hidayah, Vol. 3, p. 53), and the opinion of Shafii scolars (As-Syarbaini, Mughni Al-Muhtaj, vol. 2, p. 42). This is also the opinio of a fraction of Maliki school (Hithab, Tahrirul Kalam fi Al Iltizam, p. 353), and one version of the opinion of the two opinions in the Hanbali school (Ibn Muflih, Al-Mubdi’, vol. 5, p. 54). (See Ismail Shandi, Al-Musharaka al-Mutanaqishah, p. 18).
The opinion is based on the traditions/ahadith that prohibit two conditions or two contract. Include Hakim bin Hizam RA hadith, he said:
نهاني رسول الله صلى الله عليه وسلم عن أربع خصال في البيع عن سلف وبيع وشرطين في بيع وبيع ما ليس عندك وربح ما لم تضمن
“The Prophet forbade me of four types of trading, namely (1) combines the salam (forward buying) and trading, (2) two conditions in one trade, (3) sell anything that is not by your side, ( 4) making a profit from what you do not guarantee [the loss] “(Thabrani).
Another eveidence from a hadith that:
نهى عن بيعتين في بيعة
“The Prophet has prohibited two trading in a single trade.” (Tirmidhi, Hadith Sahih)
Also hadith that the Prophet said:
لا يحل سلف وبيع, ولا شرطان في بيع
“It is not lawful to combine salaf (forward buying) and trading, as well as two conditions are not lawful presence in one sale.” (Abu Dawud, the hadith is hasan sahih).
Also the hadith of Ibn Mas’ud RA that:
نهى عن صفقتين في صفقة واحدة
“The Prophet has forbidden the two contracts in one contract].” (Ahmad, hadith sahih)
The afromentioned hadiths have shown the prohibition of the merger (ijtimaa) of more than one contract into a single contract. (See Syandi Ismail, Al-Musharaka al-Mutanaqishah, p. 19; Taqiyuddin Nabhani, As-Syakhshiyah Al-Islamiyah, Vol. 2, p. 308).
Tarjih
Of the two opinions above, the stronger opinion (rajih) according to me (the writer) is the second opinion, i.e the opinion which forbids hybrid contract. The reasons are as follows :
First, there have been some ahadith/ traditions that clearly prohibit the merger of two or more contract into a single contract. Among them is the hadith of Ibn Mas’ud RA that:
نهى عن صفقتين في صفقة واحدة
“The Prophet has forbidden the two agreements [agreement] in the agreement [contract].” (Ahmad, hadith sahih).
Imam Taqiyuddin An-Nabhani, explaining that the two contracts referred to (shafqataini fi shafqah wahidah) in the hadith, means (wujood aqdaini fi aqdin wahid), i.e the presence of two covenant/contracts in a single contract, such as joining/combining 2 trade contracts into one, or trade contracts combined with ijara. (As-Syakhshiyah Al-Islamiyyah, vol. 2, p. 308).
The second reason is, the islamic principle (qaidah fiqhiyya) that is used to allow the hybrid contract (al aslu fil muamalat ibaahah) is incorrect. Because the origin of this principle is, that it is a branch of another islamic principle :
الأصل في الإشياء الإباحة إلا ما لم يرد دليل التحريم
“The origin rule of things is allowed as long as there is no evidence which prohibits it.”
The principle (al-aslu fi al-ash-ya `al-ibahah), only applies to objects (matter), it can not be apllied on muamalah as muamalah/transactions are not object, but a series of human activity or a unity of iijaab and qabool. Why it is said that the rule only applies to objects? Because the texts which the islamic principle is based on (ie Surat Al-Baqarah: 29) speaks of the law of the object (material), such as animals or plants, not about such mu’amalah such as trading.
The third reason is, the islamic principle used by the first opinion (al aslu fil muamalat ibahah) also contradicts to shariah texts, so it should not be practiced. The texts I meant were the hadith of the Prophet Muhammad PBUH which shows that the companions always ask first to the Prophet Muhammad regarding their muamalah. If it is true that the origin rule of muamalah is allowed, obviously the companions would perform any contracts directly without any need of asking to the Prophet PBUH.
For example, consider the hadith which shows the companions asked the prophet reg their contracts as follows:
عن حكيم بن حزام رضي الله عنه أنه قال قلت يا رسول الله إني أشتري بيوعا فما يحل لي منها وما يحرم علي قال: فإذا اشتريت بيعا فلا تبعه حتى تقبضه
From Hakim bin Hizam RA, he said, “I asked, ‘O Messenger of Allah, indeed I did a lot of trading, what is halal and haram for me?’ Rasulullah PBUH said, ‘If you buy an item, dont you sell it until you receive the item. ” (Ahmad).
So it is clear that the Prophet’s companions asked him PBUH in muamalah matters before performing it. Thus the hadith from Hakim bin Hizam RA clearly shows that the principle of al-aslu fi al Muamalat al-ibahah is false/wrong.
The Fourth reason, the opinion that says that hybrid contract is haram only if it is accompanied by haraam/prohibited actions/matters is also invalid. Because evidences/dalil which prohibit hybrid contract is absolute (mutlaq) which means whether a hybrid contract is accompanied by haraam/prohibited actions or not it remains haram. Example the hadith of Ibn Mas’ud RA:
نهى عن صفقتين في صفقة واحدة
“The Prophet has forbidden the two agreements [contracts] in one agreement [contract].” (Ahmad, hadith sahih).
Nash (text) at the top reveals pronunciation shafqataini fi shaqah wahidah (two agreements in the agreement) is absolute, ie, without restrictions or specific properties, such as deal with things that are haram. So that is prohibited is the merger agreement, unanimously. Without seeing it again if the merger agreement with haram or not.
Understanding of such texts was based on the principle of usul fiqh which states:
المطلق يجري على إطلاقه ما لم يرد دليل التقييد
“Al-muthlaqu yajri ‘ala ithlaqihi maa lam yarid proposition at-taqyid.” (pronunciation is absolutely fixed in its absoluteness for the proposition that there is no limit). (Wahbah Az-Zuhaili, Usul Al-Fiqh Al-Islami, Vol. 1, p. 208).
In this case there are no texts that provide taqyid (limit) on the absoluteness of the texts, and thus the merger agreement is absolutely haram without seeing it if the merger contract with haram element or not.
Conclusion
Based on the above, there are two conclusions. First, there is khilafiyah (difference of opinion) among scholars about the issue of hybrid contract. There are some scholars who allow it, while the jumhur (majority) scholars forbid it. Second, the strong opinion (rajih) in our opinion is the opinion of scholars who forbid the hybrid contract. And Allaah knows best.
