In AITAB, a parties need to sign two agreements at the beginning of the process, name as Al-Ijarah contract and to be continued with a sales contract. These two agreements need to be signed together in order to complete the hire purchase transaction. Theoretically, the purpose of the dual signing in a majlis is to ensure that the lease assets will be transferred to the lessee at the end of the leasing period. It is like a binding process to ensure that the complete transaction will be done at the end of the period and it is not much different from the conventional hire purchase transaction/financing lease.
However, this process leads to a few serious problems. First, the
elimination of khiyar al-‘ayb or the option of defect to the purchaser or in
this case is lessee. At the sale transaction which will be happened at the end
of the leasing period, a lessee will become as a buyer and a lessor as a
seller. In this stage, a buyer supposes to have an option of defect in which he
has a right to reject or cancel the transaction. According to the Mejelle, “any buyer in Islamic law has
an automatic implied warranty against latent defects in the goods purchased”.
The Hanafi School defined a “latent” defect as[i],
“Everything, which results in a diminution of value according to commercial
custom, whether this diminution is gross or minimal”[ii]
The elimination of this right which normally happened with or without
intention is jeopardizing the completeness of Islamic sales transaction. It is
also affecting one of the pillars of maqasid syariah which is the a’dalah or
justice to the buyer.
[i]
Mahmood Mohamed Sanusi,
Islamic Banking and Finance Shari’ah & Legal: Issues and Challenges, 2012,
First Edition, Aslita Sdn Bhd.
[ii]
Qouted from Mahmood Mohamed Sanusi (2012) Jaziri, Kitab al-Fiqh ala al-madhahin al-Arbaa, Vol. 7, pp188-189,
Sarahsi, al-Mabsut, XIII, pp91-121; Marghinani, al-Hidaya, III, p. 27
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