Special legal feature of Islamic wa'd or pledge: comparison with the conventional law on promise within the sphere of Islamic finance

Wisham, Ismail and Muneeza, Aishath and Hassan, Rusni (2011) Special legal feature of Islamic wa'd or pledge: comparison with the conventional law on promise within the sphere of Islamic finance. International Journal of Law and Management, 53 (3). pp. 221-234. ISSN 1754-243x

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Abstract

Purpose – The purpose of this paper is to theoretically assess the legal position of the Islamic doctrine of wa'd (or pledge) in relation to 'aqd (within the sphere of Islamic finance), and compare it with the conventional viewpoint, while discussing the several modes/means/usages in terms of applied Shariah. Design/methodology/approach – The paper utilizes a doctrinal approach to focus on the theoretical aspect of the concept while attempting to suggest practical adaptation and structuring, enabling smoother and more efficient use. The status quo was dependent on the wa'd being an operational instrument in today's world and further development in terms of bridging the understanding was the approach. Findings – Before invoking the legal validity of wa'd in a court, it is important to view the practice of wa'd to be a dominant ideology utilized in Islamic finance. The first advocate who called for the practice of the binding promise in commutative financial contracts was probably Sheikh Mustafa Al-Zarqa who adopted the position that if it was admissible, for the unilateral promise (wa'd) to be binding in donations, then, in his view, it was even more justifiable for the wa'd to be binding in commutative contracts. According to the preponderant opinion among Maliki scholars, a unilateral promise is as binding as a contract if the reason was mentioned in it or the contract was initiated based on the promise, a view shared by scholars such as Imam Bukhari. The other point of view, according to contemporary jurists such as Al-Syntiqi and Dr Muhamed Sulaiman opine that a unilateral promise would not create any liability upon the promisor and it also does not confer any right to the promisee, although from religion point of view, it is recommended to fulfill it. Practical implications – Fully understanding the modus operandi of a wa'd in key as today, wa'd has established itself within the domain of several transactions under Islamic banking and finance, such as replicating conventional short selling, structuring FOREX markets option and even operating in a double wa'd structure. Originality/value – The paper would prove useful and informative on the theoratical aspect of the concept especially to students starting out in Islamic finance. For those already well versed or immersed in the field, the paper would certainly provide ideas and exploratory suggestions into the development of the concept in terms of enhancement.

Item Type:	Article (Journal)
Additional Information:	1525 / 3125
Uncontrolled Keywords:	Islam, contracts, finance
Subjects:	H Social Sciences > HG Finance > HG1501 Banking K Law > KBP Islamic Law > KBP1 Islamic law.Shariah.Fiqh
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Islamic Law
Depositing User:	Prof Dr Rusni Hassan
Date Deposited:	15 Sep 2011 17:11
Last Modified:	19 Sep 2011 08:22
URI:	http://irep.iium.edu.my/id/eprint/3125

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