Murabaha

Not to be confused with Murabba.

Murabaḥah, murabaḥa or murâbaḥah (Arabic: مرابحة‎‎, derived from ribh Arabic: ربح‎‎, meaning profit) is a term of fiqh (Islamic jurisprudence) for a sale where the buyer and seller agree on the markup (profit) or "cost-plus price[1] for the item(s) being sold.[2] In recent decades it has become a term for a form of Islamic (i.e. "shariah compliant") financing, where in exchange for allowing the buyer to defer payment the seller marks up the regular price. Murabaha financing is similar to a rent-to-own arrangement in the non-Muslim world, with the intermediary (i.e. the lending bank) retaining ownership of the property until the loan is paid in full.[3]

The purpose of murabaha is to finance a purchase while not paying any interest, which most Muslims (particularly most scholars) consider riba (usury) and thus haram (forbidden).[4] Murabaha has been called "the most prevalent"[4] or "default" type of Islamic finance.[5]

A proper murâbaḥah transaction differs from conventional interest-charging loans in several ways. The buyer/borrower pays the seller/lender at an agreed upon higher price, instead of interest charges, but makes a religiously permissible "profit on the sale of goods".[4][6] The seller/financer must take actual possession of the good before selling it to the customer; and must assume "any liability from delivering defective goods".[7] Sources differ as to whether the seller is permitted to charge extra when payments are late,[8] with some authors stating any late fees ought to be donated to charity,[9][10][11] or not collected unless the buyer has "deliberately refused" to make a payment.[7]

Conservative scholars promoting Islamic finance consider murabaha to be a "transitory step" towards a "true profit-and-loss-sharing mode of financing",[12] and a form to be used where profit-and-loss-sharing is "not practicable." [12][13] Critics/skeptics complain/note that in practice most "Murabaḥah" transactions are merely cash-flows between banks, brokers and borrowers, with no buying or selling of commodities;[14] that the profit or mark-up is based on the prevailing interest rate used in haram lending by the non-Muslim world;[15] that "the financial outlook" of Islamic Murabaha financing and conventional debt/loan financing is "the same",[16] as is most everything else besides the terminology used.[17]

Religious justification

According to noted Islamic scholar Taqi Usmani, the reference to "trade" in Quran aya 2:275:[18]

"... they say, 'Trafficking (trade) is like usury,' [but] God has permitted trafficking, and forbidden usury .."

refers to credit sales such as murabaha.[19] Usmani states that while it may appear to some people that allowing a buyer more time to pay for some product/commodity (deferred payment) in exchange for their paying a higher price is effectively no different from their paying interest on a loan,[20] this is in correct. In fact, just as a buyer may pay more for a product/commodity when the seller has a cleaner shop or more courteous staff, so too the buyer may pay more when given more time to pay for the product or commodity.[20] When they do this -- buy a specific product/commodity paying extra for deferred payment -- that extra is only "an ancillary factor to determining the price", and so permitted in Islam.[21] When a credit transaction is made without a specific commodity or product in mind, the added charge for deferred payment (interest) is for "nothing but time", and so is forbidden riba.[21]

Usmani claims that "this position" is accepted "unanimously" by the "four [ Sunni ] schools" of Islamic law and "the majority" of the Muslim jurists.[22] Murabahah and related fixed financing has been approved at least in Pakistan by a number of government reports on how to eliminate Interest. [Note 1]

Late payment

Usmani argues that a demonstration of the fact that in a true murâbaḥah transaction is not riba, is that no increase in price is allowed if payment is late. This is because "the whole price [in a murâbaḥah transaction] is against a commodity and not against money" and so "... once the price is fixed, [the price] relates to the commodity, and not to the time, [and so] the price will remain the same and can never be increased by the seller. Had [the price] been against time, it might have been increased, if the seller allows him more time after the maturity."[24] In another work (Introduction to Islamic Finance), Usmani states that a "problem" of murabahah financing is that "if the client defaults in payment of the price at the due date, the price cannot be increased".[25] Others agree.[7][26] (According to one source (Mushtak Parker), Islamic financial institutions "have long tried to grapple with the issue of delayed payments or defaults, but thus far there is no universal consensus across jurisdictions in this respect."[26])

Islamic finance, use, varieties

In its 1980 report on the Elimination of Riba, the Council of Islamic Ideology of Pakistan stated that Murabahah should

Murâbaḥah is one of three types of bayu-al-amanah (fiduciary sale), requiring an "honest declaration of cost". (The other two types are tawliyah -- sale at cost -- and wadiah -- sale at specified loss.)

The idea that the seller may not use Murâbaḥah if profit-sharing modes of financing such as mudarabah or musharakah are practicable, is supported by other scholars that those in the Council of Islamic Ideology.[12][13] But these involve risks of loss, they cannot guarantee banks income. Murabahah, with its fixed margin, offers the seller (i.e. the bank/financier) a more predictable income stream. One estimate is that 80% of Islamic lending is by Murabahah.[28] M. Kabir Hassan reports that murabah accounts are quite profitable. As of 2005, "the average cost efficiency" for murabah was "74%, whereas average profit efficiency" even higher at 84%. Hassan states, "although Islamic banks are less efficient in containing cost, they are generally efficient in generating profit."[29]

Islamic banker and author Harris Irfan writes that use of murabaha "has become so distorted from its original intent that it has become the single most common method of funding inter-bank liquidity and corporate loans in the Islamic finance industry."[30] A number of economists have noted the dominance of Murabahah in Islamic finance, despite its theological inferiority to profit and loss sharing.[31][32][33] One scholar has coined the term "the murabaha syndrome" to describe this.[34]

The accounting treatment of Murâbaḥah, and its disclosure and presentation in financial statements, vary from bank to bank. If the exact cost of the item(s) cannot be or are not ascertained, they are sold on the basis of musawamah (bargaining).[4] Different banks use this instrument in varying ratios. Typically, banks use murabahah in asset financing, property, microfinance and commodity import-export.[35] The International Monetary Fund reports that, Murâbaḥah transactions are "widely used to finance international trade, as well as for interbank financing and liquidity management through a multistep transaction known as tawarruq, often using commodities traded on the London Metal Exchange" (LME).[7]

The basic murabaha transaction is a cost-plus-profit purchase where the item the bank purchases is something the customer wants but does not have cash at the time to buy directly.[36] However, there are other murabaha transactions where the customer wants/needs cash and the product/commodity the bank buys is a means to an end. (Thus violating the requirement spelled out by Usmani and others.)

Bay' al-Ina

(Also Bay' al-'Inah). This simple form of Murabahah involves the lender buying some object from the borrower for cash, then selling the object back to the borrower at a higher price, with payment to be deferred over time. The borrower now has cash and will be paying the lender back a larger sum of money over time. This resemblance to a conventional loan has led to bay' al-ina being criticized as a ruse for a cash loan repaid with interest.[37] It was used by a number of modern Islamic financial institutions despite condemnation by jurists, but in recent years its use is "very much limited".[38]

Bay' al-Tawarruq

Tawarruq (also called commodity murabaha) differs from bay al-ina by involving a third party in addition to the borrower and Islamic bank. In Tawarruq the borrower would buy some amount of a commodity from the bank to be paid in installments over the next two years and sell that commodity on the spot market (the commodity buyer being the third party) for cash.[38][39][40] An example would be buying $10,000 worth of copper on credit for $12,000 to be paid over two years, and immediately selling that copper to the third party spot buyer for $10,000 in cash.

According to Islamic banker Harris Irfan, this complication has "not persuaded the majority of scholars that this series of transactions is valid in the Sharia."[41] The IMF states that "tawarruq has become controversial among Shari’ah scholars because of its divergence of its use from the spirit of Islamic finance".[7] But some prominent scholars have tolerated commodity murabaha "for the growth of the [Islamic finance] industry".[5] Irfan states that (at least as of 2015) Sharia boards of some banks (such as Abu Dhabi Islamic Bank), have taken a stand against Tawarruq and were "looking at 'purer' forms of funding" (such as mudarabah).[42]

Challenges and criticism

Islamic Scholars such as Taqi Usmani emphasize that murâbaḥah should only be used as a structure of last resort where profit and loss sharing instruments are unavailable.[22] Usmani himself describes murâbaḥah as a "borderline transaction" with "very fine lines of distinction" compared to an interest bearing loan, as "susceptible to misuse", and "not an ideal way of financing".[22]

Critics complain that in practice, in murâbaḥah most transactions the commodities never change hands (the commodity never appears on the bank's balance sheet[5]) and sometimes there are no commodities at all, merely cash-flows between banks, brokers and borrowers. Often the commodity is completely irrelevant to the borrower's business and not even enough of the relevant commodities are in existence in the world to account for all the transactions taking place.[14] Frank Vogel and Samuel Hayes also note multi-billion-dollar murabaha transactions in London "popular for many years", where "many doubt the banks truly assume possession, even constructively, of inventory, a key condition of a religiously acceptable murabaha." [Note 2]

Islamic banker Irfan bemoans the fact that "not only is the murabaha money market insufficiently well developed and illiquid, but the very sharia compliance of it has come to be questioned", often by Islamic scholars not known for their strictness.[42]

Circa 1999 the Pakistan Federal Shariat Court ruled that the "mark-up system ... in vogue" among banks in Pakistan was against the Islamic injunctions.[45] Usmani noted (much like the complaints above) that the Pakistani banks failed to follow proper murabaha requirements -- not actually buying a commodity or buying one "already owned by the customer".[46]

Late payment

While in conventional finance late payments/delinquent loans are discouraged by accumulating interest, in Islamic finance control and managment of late accounts has become a "vexing problems", according to Muhammad Akran Khan.[47] Others agree it is a problem.[25][26][Note 3] According to Ibrahim Warde,

Islamic banks face a serious problem with late payments, not to speak of outright defaults, since some people take advantage of every dilatory legal and religious device ... In most Islamic countries, various forms of penalties and late fees have been established, only to be outlawed or considered unenforceable. Late fees in particular have been assimilated to riba. As a result, `debtors know that they can pay Islamic banks last since doing so involves no cost`[49][47]

Warde also complains that

"Many businessmen who had borrowed large amounts of money over long periods of time seized the opportunity of Islamicization to do away with accumulated interest of their debt, by repaying only the principal -- usually a puny sum when years of double-digit inflation were taken into consideration.[49][47]

Some suggestions to solve the problem include having the government or the central bank penalizing defaultors "by depriving them" of the use of "any financial institution" until they paid up (Taqi Usmani in Introduction to Islamic Finance) -- although this would require a completely Islamized society.[25] Collecting late fees but donating them to charity,[50][10][11] Collecting late fees only when the buyer "has deliberately refused to make a payment"(Mumtaz Hussain, Asghar Shahmoradi, Rima Turk, writing for the IMF).[7]

Example of Murâbaḥah

An example of a Murabaha contract is: Adam approaches a Murabaha bank in order to finance the purchase of a $10,000 automobile from “Cash-Only-Automobiles”. The bank agrees to purchase the automobile from “Cash-Only-Automobiles” for $10,000 and then sell it to Adam for $12,000 which is to be paid by Adam in equal installments over the next two years.

While the cost to Adam is approximately that of a 10% per year loan, Islamic banks using this transaction maintain it is different because the amount that Adam owes is fixed and does not increase if he is delinquent on payments. Therefore, the finance is a sale for profit and not riba.

Another argument that murahaba is shariah compliant is that it is made up of two transactions, both halal (permissible):

Does Islam allow someone to buy a car for $10,000 and sell it for $12,000? Yes.
Does Islam allow someone to make a purchase on a deferred payment basis? Yes.

However, not mentioned here is the fact that the same car that is being sold for $12,000 on a deferred payment basis is being sold for $10,000 on a cash basis. So basically Adam has two options:

  1. “Cash-Only-Automobiles” will sell him the car for $10,000 but are not willing to wait to receive the full price.
  2. The Murabaha Bank will sell him the car for $12,000 and is willing to wait two years to receive the full price.

Adam’s choice to purchase from the Murabaha Bank reflects his desire to not pay the full price of the car today. In other words, he prefers to pay part of the price today and be indebted with the rest.

The Murabaha Bank agrees to be owed by Adam the price of his car in return for the amount that it is owed being $2,000 more than the price of the car today.

Did the bank charge Adam a predetermined return for the use of its money [interest]? Yes. The bank charged $2,000 in return for Adam’s use of its $10,000 to buy a car.

The fact that no penalties are assessed if Adam is delinquent on his payments simply means that the amount of interest in the Murabaha contract is fixed at $2,000.[17] This amounts to a Ḥiyal or legal "trick" to defeat the intent of shariah.[38]

See also

References

Notes

  1. ↑
    • "The first comprehensive report in this respect was submitted by the Council of Islamic Ideology in 1980.
      *"The second report was that of the Commission for Islamization of Economy, constituted under the Shariat Act. This Commission has submitted its comprehensive report to the government in 1991.
      *"Lastly, the same Commission was reconstituted under the Chairmanship of Raja Zafarul Haq which submitted its final report in August 1997."[23]
  2. ↑ "A number of scholars have recently cast doubts upon the acceptability of one of the most widely used forms of Islamic finance: the type of Murabaha trade financing practiced in London. These investors and well-known multinationals seeking lowest-cost working capital loans. Although these multi-billion-dollar contracts have been popular for many years, many doubt the banks truly assume possession, even constructively, of inventory, a key condition of a religiously acceptable murabaha. Without possession, these arrangements are condemned as nothing more than short-term conventional loans with a predetermined interest rate incorporated in the price at which the borrower repurchases the inventory. These 'synthetic' murabaha transactions are unacceptable to the devout Muslim, and accordingly there is now a movement away from murabaha investments of all types. Al-Rajhi Bank, al-Baraka, and the Government of Sudan are among the institutions that have vowed to phase out murabaha deals. This development creates difficulty: as Islamic banking now operates, murabaha trade financing is an indispensable tool."[43][44]
  3. ↑ The Islamic Bankers Resource Centre also states that "for the longest time, Islamic Banks have been abused by delinquent customers due to the low penalties for late payments".[48]

Citations

  1. ↑ Irfan, Harris (2015). Heaven's Bankers. Overlook Press. p. 135.
  2. ↑ Usmani, Taqi. An Introduction to Islamic Finance. Creative Commons Attribution-No Derivative Works 3.0. p. 65. Retrieved 4 August 2015.
  3. ↑ "Murabaha". Investopedia. Retrieved 3 August 2015.
  4. 1 2 3 4 Islamic Finance: Instruments and Markets. Bloomsbury Publishing. 2010. p. 131. Retrieved 4 August 2015.
  5. 1 2 3 Irfan, Harris (2015). Heaven's Bankers. Overlook Press. p. 139.
  6. ↑ "A Simple Introduction to Islamic Mortgages". 14 May 2015.
  7. 1 2 3 4 5 6 Hussain, Mumtaz; Shahmoradi, Asghar; Turk, Rima (June 2015). IMF Working paper, An Overview of Islamic Finance (PDF). p. 8. Retrieved 9 July 2016.
  8. ↑ "Late Payment Charges for Islamic Financial Institutions". Islamic Bankers : Resource Centre. Retrieved 9 July 2016.
  9. ↑ Visser, Hans (ed.). "4.4 Islamic Contract Law". Islamic Finance: Principles and Practice. Edward Elgar. p. 77. Retrieved 9 July 2016. The prevalent position, however, seems to be that creditors may impose penalties for late payments, which have to be donated, whether by the creditor or directly by the client, to a charity, but a flat fee to be paid to the creditor as a recompense for the cost of collection is also acceptable to many fuqaha.
  10. 1 2 Kettell, Brian (2011). The Islamic Banking and Finance Workbook: Step-by-Step Exercises to help you ... Wiley. p. 38. Retrieved 9 July 2016. The bank can only impose penalties for late payment by agreeing to `purify` them by donating them to charity.
  11. 1 2 "FAQs and Ask a Question. Is it permissible for an Islamic bank to impose penalty for late payment?". al-Yusr. Retrieved 9 July 2016.
  12. 1 2 3 Irfan, Harris (2015). Heaven's Bankers. Overlook Press. p. 136.
  13. 1 2 Usmani, Taqi. An Introduction to Islamic Finance. Creative Commons Attribution-No Derivative Works 3.0. p. 107. Retrieved 4 August 2015. Therefore, it [Murabahah] should neither be taken as an ideal Islamic mode of financing, nor a universal instrument for all sorts of financing. It should be taken as a transitory step towards the ideal Islamic system of financing based on musharakah or mudarabah.
  14. 1 2 "Misused murabaha hurts industry". Arabian Business. 1 February 2008.
  15. ↑ Usmani, Taqi. An Introduction to Islamic Finance. Creative Commons Attribution-No Derivative Works 3.0. p. 81. Retrieved 4 August 2015.
  16. ↑ Murabaha Financing VS Lending on Interest| Qazi Irfan |July 22, 2008 | Social Science Research Network
  17. 1 2 Kayali, Rakaan. "Murabaha: Halal or Haram?". Practical Islamic Finance.
  18. ↑ Quran 2:275, SAHIH INTERNATIONAL translation
  19. ↑ Usmani, Historic Judgment on Interest, 1999: paras 50, 51, 219
  20. 1 2 Usmani, Historic Judgment on Interest, 1999: para 223
  21. 1 2 Usmani, Historic Judgment on Interest, 1999: para 225
  22. 1 2 3 Usmani, Historic Judgment on Interest, 1999: para 227
  23. ↑ Usmani, Historic Judgment on Interest, 1999: para 228
  24. ↑ Usmani, Historic Judgment on Interest, 1999: para 224
  25. 1 2 3 Usmani, Introduction to Islamic Finance, 1998: p.91
  26. 1 2 3 PARKER, MUSHTAK (5 July 2010). "Payment delays and defaults". Arab News. Retrieved 2 December 2016.
  27. 1 2 3 4 5 Usmani, Historic Judgment on Interest, 1999: para 190
  28. ↑ Haltom, Renee (Second Quarter 2014). "Econ Focus. Islamic Banking, American Regulation". Federal Reserve Bank of Richmond. Retrieved 26 August 2015. Check date values in: |date= (help)
  29. ↑ M. Kabir HASSAN. "The Cost, profit and X-efficiency of Islamic Banks," 12th Annual Conference of Economic Research Forum, Egypt, 19-21 December, 2005.
  30. ↑ Irfan, Harris (2015). Heaven's Bankers: Inside the Hidden World of Islamic Finance. Little, Brown Book Group. p. 135. Retrieved 28 October 2015.
  31. ↑ Iqbal, Munawar, and Philip Molyneux. 2005. Thirty years of Islamic banking: History, performance and prospects. New York: Palgrave Macmillan.
  32. ↑ Kuran, Timur. 2004. Islam and Mammon: The economic predicaments of Islamism. Princeton, NJ; Princeton University Press
  33. ↑ Lewis, M.K. and L.M. al-Gaud 2001. Islamic banking. Cheltenham, UK and Northampton, MA, USA: Edward Elgar
  34. ↑ Yousef, T.M. 2004. The murabaha syndrome in Islamic finance: Laws, institutions and policies. In Politics of Islamic finance, ed. C.M. Henry and Rodney Wilson. Edinburgh: Edinburgh University Press
  35. ↑ Government of Pakistan: Securities and Exchange Commission of Pakistan
  36. ↑ "MAKE PURCHASES WITH COST PLUS PROFIT (MURABAHA) CONTRACTS". dummies.com. Retrieved 21 September 2016.
  37. ↑ "Glossary of Financial Terms - B". Institute of Islamic Banking and Insurance. Retrieved 21 September 2016.
  38. 1 2 3 Irfan, Harris (2015). Heaven's Bankers: Inside the Hidden World of Islamic Finance. Overlook Press. p. 137.
  39. ↑ "What is the Difference Bay' al-Tawarruq and Bay' al-Inah?". Investment and Finance. Jan 11, 2014. Retrieved 9 July 2016.
  40. ↑ "Fiqh Muamalat. Bay' al-Tawarruq". scribd.com. Universiti Teknologi Mara. Retrieved 21 September 2016.
  41. ↑ Irfan, Harris (2015). Heaven's Bankers: Inside the Hidden World of Islamic Finance. Overlook Press. p. 138.
  42. 1 2 Irfan, Harris (2015). Heaven's Bankers: Inside the Hidden World of Islamic Finance. Overlook Press. p. 226.
  43. ↑ Frank VOGEL and Samuel Hayes, III. Islamic Law and Finance: Religion, Risk and Return [The Hague: Kluwer Law International, 1998], pp.8-9
  44. ↑ Farooq, Riba-Interest Equation and Islam, 2005: p.19
  45. ↑ Usmani, Historic Judgment on Interest, 1999: para 219
  46. ↑ Usmani, Historic Judgment on Interest, 1999: para 191
  47. 1 2 3 Khan, What Is Wrong with Islamic Economics?, 2013: p.207-8
  48. ↑ "Late Payment Charges for Islamic Financial Institutions". Islamic Bankers : Resource Centre. Retrieved 2 December 2016.
  49. 1 2 Warde, Islamic finance in the global economy, 2000: p.163
  50. ↑ Visser, Hans (ed.). "4.4 Islamic Contract Law". Islamic Finance: Principles and Practice. Edward Elgar. p. 77. Retrieved 9 July 2016. The prevalent position, however, seems to be that creditors may impose penalties for late payments, which have to be donated, whether by the creditor or directly by the client, to a charity, but a flat fee to be paid to the creditor as a recompense for the cost of collection is also acceptable to many fuqaha.

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