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Bay' al-Sarf

Bay' al-Sarf

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Published by Mahyuddin Khalid

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Published by: Mahyuddin Khalid on Jun 19, 2012
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03/08/2015

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MAHYUDDIN KHALID

emkay@salam.uitm.edu.my

CONTENT
DEFINITION

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

 DEFINITION  EVIDENCES  PILLARS OF BAY AL-SARF  CONDITIONS OF BAY AL-SARF  OPINION OF SCHOLARS  MODERN APPLICATION

2

DEFINITION
DEFINITION

 Literal:
 sale and purchase of money for money including gold and silver

EVIDENCES

 Technical:
 Sale of money for money such as the sale of gold-forgold or silver-for-silver.

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

 Maliki scholars considers money exchange only if the sale of gold-for-gold or silver-for-silver but gold for silver does not belong to such transactions.  Bay‟ al-sarf is a sale of something that is price in its own nature for something which is also a price.  It is regarded, as the sale of price for price and each price is a consideration for the other.

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EVIDENCE
DEFINITION

 Hadith:
 Ubadah ibn Samit narrated that Rasulullah (s.a.w) said that: “Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, and salt for salt, should be exchange like for like, equal for equal and hand-to-hand. If the types of exchanged commodities are different, then sell them as you wish, if they are exchanged on the basis of hand-to-hand transaction.”
 Narrated by Muslim

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

 Ijma‟
 All Islamic scholars unanimously agree on the permissibility of bay‟ al-sarf as it has been practice by the people since the time of Prophet (s.a.w) until now without any objections.

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PILLARS OF BAY’ AL-SARF
DEFINITION

EVIDENCES

 Seller and buyer  Merchandise/goods  Price  Sighah

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

5

CONDITIONS OF BAY’ AL-SARF
DEFINITION

Taking possession before leaving one another
• It is necessary that both the things exchanged shall be taken possession before the separation of the parties. • This is because departing with debts on both sides is not permitted as it is regarded as sale of debt against debt (bay‟ al-kali‟ bi al-kali) which is prohibited.

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

Equal for equal transaction
• There can be no credit or postponement of delivery. The principle concerning money is that it cannot be sold or bought on credit. • If the currency trading involves the exchange of currencies of the same genus such as silver for silver or gold for gold, they must be transacted in like-for-like even if they differ in quality since consideration is given only to quantity.

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CONDITIONS OF BAY’ AL-SARF
DEFINITION

Freedom from khiyar syarat
• An option of condition cannot be stipulated. One of the contracting parties may stipulate certain conditions which if not met would grant a legal right to the stipulating party to rescind the contract. • However, khiyar „aib (option of defect) is allowed.

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

Non deferment
• Delivery of both counter values should not be deferred to a certain point of time in the future. • If one of the parties stipulated a deferment in the receipt of one of the currencies, the contract is rendered null and void as it has been prescribed that exchanges of goods eligible for riba should be on a hand-to-hand basis.

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BAY’ AL-SARF CONCEPT OF ON FOREX
DEFINITION

 Spot Basis
 Practice based on urf (customs)  An exchange between items which are the same such as currencies with currencies. By using analogy on the hadith, majority of fuqaha‟ agree that all forms of currency should obey the rules established for gold and silver exchanges  A consensus among Islamic jurists on the view that currencies of different countries can be exchanged on a spot basis at a rate different from unity, since currencies of different countries are distinct entities with different values or intrinsic worth, and purchasing power.

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

8

BAY’ AL-SARF CONCEPT OF ON FOREX
 Forward Basis
DEFINITION EVIDENCES

PILLARS

 In general, majority of scholars on the view that currency exchange on a forward basis is not permissible, that is, when the rights and obligations of both parties relate to a future date.  However, recently the IFI practice bay al-sarf based on waad (promise) or murabahah commodity
1. Waad based using unilateral promise
 The customer promise to purchase/ sell foreign currency with a bank.  A who is looking for a hedge will provide an undertaking to buy a currency from B in the future. A is bound to fulfill its promise to B however B is not under any obligation to act on the transaction when an offer of purchase is submitted.  Essential elements of the promise include the purchase price of the currency and the delivery date. The promise must not be conditional on any event.

CONDITIONS OPINION OF SCHOLARS APPLICATION

9

BAY’ AL-SARF CONCEPT OF ON FOREX
2.
DEFINITION

Murabahah commodity based
 Customer and bank enter into two separate murabahah transaction to facilitate forward foreign exchange contract.  Customer will buy commodity for spot value and sell it to the bank for purchase price plus agreed profit payable on deferred basis.  The bank will buy another commodity and sell it to the customer again for the purchase price plus agreed profit on deferred basis to address the other side of the forward deal.  Both the customer and the bank typically will sell the commodity back to the market to recover their initial investment.

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

10

APPLICATION
DEFINITION

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

 Bay‟ al-sarf is applicable to modern spot forex which is based on the spot rate which the deal settlement is expected to be completed shortly after the contract has been executed.  Majority of scholars opine that different currencies of different countries consist of different intrinsic values and purchasing power.  There are several IFI offer products construct using bay al-sarf such as:
 Gold investment savings account  Shariah compliant forex investment product

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END OF CHAPTER
DEFINITION

EVIDENCES

PILLARS

CONDITIONS OPINION OF SCHOLARS APPLICATION

12

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