TRADE-BASED FINANCING

MURABAHA (COST-PLUS SALE)

The early models of Islamic banks are based on partnership of mudharaba and musharaka (profit-loss sharing) structure

They are superior to conventional They are superior to conventional financing from the standpoint of financing from the standpoint of robustness to external shocks and from robustness to external shocks and from the standpoint of ethics, fairness and the standpoint of ethics, fairness and social justice. social justice.

Where profit-loss sharing mechanisms Where profit-loss sharing mechanisms cannot be used, Islamic banks provide cannot be used, Islamic banks provide other contracts and services that are other contracts and services that are legally binding and lawful under legally binding and lawful under Shari'aShari'a law and Islamic principles: law and Islamic principles: murabaha, murabaha, bay'-bithaman-ajil (BBA), ijara, salam, bay'-bithaman-ajil (BBA), ijara, salam, istisna', istijrar and qard-hasan.istisna', istijrar and qard-hasan.

The list also includes debt-products that The list also includes debt-products that involve tawarruq, bay’-aldayn, and bay'-al-involve tawarruq, bay’-aldayn, and bay'-al-einah, that are either rejected or at best einah, that are either rejected or at best deemed controversial by mainstream deemed controversial by mainstream Islamic scholars.Islamic scholars.

THE CONCEPT OF MURABAHA Murabaha is a contract of sale where the

seller discloses to the buyer the actual cost of the item to be sold in addition to the profit margin (mark up) added, to be mutually agreed upon with the buyer.

It is important to note that in classical fiqh, murabaha refers to sale (bay’), with all its implications and prescribed Shari’a conditions pertaining to sale, and has nothing to do with financing in the conventional sense.

When used as merely a means of circumventing the prohibition of riba, it is not an ideal instrument to implement the real economic objectives of Islam. Its use should be limited to circumstances where equity-based arrangements such as mudaraba or musharaka are not practicable.

Murabaha financing is a widely used contract in contemporary Islamic banking and finance; and it is limited to cases where the customer actually needs to purchase some commodity.

As a result, there are a number of contentious issues relating to the application of murabaha in trade financing.

These issues do not question the permissibility of murabaha as a valid contract but rather the manner of implementation of murabaha as well as specific terms and conditions related to its use in modern day trade financing

With regard to Islamic banking, murabaha is an agreement wherein the bank purchases, at the request of a customer, a specified item, and then sells it to him at a mutually agreed marked-up price.

Murabaha is different from musawama, where the commodity is sold for a lump sum price without any reference to the cost

Payment for goods under murabaha may be made either on cash basis or under deferred payment terms.

Although common usage of murabaha in trade financing is typically done by way of deferred payment, by definition, murabaha is not exclusively a deferred payment sales

To understand murabaha concept we have to link it first to Bay' bithaman ajil (BBA) or simply bay’ mu’ajjal.

Bay' Bithaman Ajil (BBA) BBA is a Shari'a approved sale where the

good is delivered upfront but the payment of price is deferred to a future date.

Often it includes features of a murabaha, which implies a sale on a cost-plus / profit margin basis. Selling price is the price stated in the contract and cannot change throughout financing period.

In determining the selling price, the bank sets the profit margin rate per annum, say 5%. Suppose the cost price (CP) = $100,000 and the financing period = 10 years. Then,

the total profit margin (TPM) = (0.05 x $100,000) x 10 = $50,000 and the selling price = CP + TPM= $100,000 + $50,000 = $150,000

SHARI’A BASIC RULES OF SALE A murabaha transaction does not become

valid simply by replacing the term “interest” with “profit” or “mark-up”. All the conditions stipulated by the Shari’a in relation to a murabaha transaction must be observed to ensure Shari’a validity

Shari'a therefore, imposes several constraints and prescribes certain norms in order that a murabaha facility is free from riba and gharar.

Subject of Murabaha (Item for Sale) must be specifically known and identified. must be in existence and must be owned

by the seller at time of sale. cannot be for haram use or harm items must be something of value and classified

as property in fiqh. Sale must not be attributed to a future date Terms of delivery must be specified and

certain. Sale must be unconditional and must not

be contingent on a future event or fulfillment of a condition that is external to the transaction.

Specification of Price A requirement of a valid sale is knowledge and

specification of price and payment terms- spot or deferred.

In case of deferred payment, the terms, such as, maturity, amount and timing of installments must be clearly specified at the time of contracting to avoid any gharar or uncertainty as a source of potential conflict between the parties.

The deferred price may be more than the cash price, but it must be fixed at the time of sale. Once the price is fixed, it cannot be increased in case of default; nor can it be decreased in case of early payment.

IMPLEMENTATION ISSUES IN MURABAHA FINANCING

A murabaha facility at times may appear similar to conventional bank financing; and it may look like substituting profit rate or mark-up for the rate of interest. Indeed the distinction between the two may disappear if proper care is not exercised in the practice of murabaha.

The following are some important issues that help preventing an abuse of the system in dealing with murabaha.

Risk and Return In line with the Shari'a maxim of “revenue goes

with liability”, the bank must bear a certain amount of risk associated with ownership, such as price risk, risk of destruction of asset etc. to legitimize its returns.

the bank must have the ownership and possession of the item before it can sell it to the customer.

Possession may be physical or constructive. Does the risk bearing by the bank even if for a

short time period legitimize bank’s profits in the eyes of Shari'a as distinct from prohibited riba?

Legal Nature of Promise Is the customer's promise legally binding

and can the bank seek legal enforcement of the promise in the court of law or is it just a moral obligation?

Profit Rates and BenchmarksProfit Rates and Benchmarks Islamic banks usually base their Islamic banks usually base their

calculations of the mark-up price (cost-calculations of the mark-up price (cost-plus) on the market interest rate, such as, plus) on the market interest rate, such as, the LIBOR (London Inter Bank Offering the LIBOR (London Inter Bank Offering Rate) or BLR (Base Lending Rate). Rate) or BLR (Base Lending Rate).

This naturally leads to a suspicion that This naturally leads to a suspicion that murabahamurabaha is no different from is no different from conventional lending. conventional lending.

The question that can be raised is whether The question that can be raised is whether it is islamically correct for the Islamic bank it is islamically correct for the Islamic bank to use the LIBOR or BLR to calculate the to use the LIBOR or BLR to calculate the markup price.markup price.

Spot and Deferred PricesSpot and Deferred Prices According to majority of scholars, the According to majority of scholars, the

deferred price may be more than the cash deferred price may be more than the cash price, but it must be fixed at the time of price, but it must be fixed at the time of sale. The reason for this permissibility sale. The reason for this permissibility perhaps lies in the fact that the seller can perhaps lies in the fact that the seller can charge varying prices with an absolute charge varying prices with an absolute freedom in the matter.freedom in the matter.

Fixed and Floating Profit RatesFixed and Floating Profit Rates Interest rates are observed to be volatile and Interest rates are observed to be volatile and

many conventional banking products are many conventional banking products are floating-rate products. The rates on such loans floating-rate products. The rates on such loans are automatically adjusted upwards or are automatically adjusted upwards or downwards in line with changes in interest rates.downwards in line with changes in interest rates.

MurabahaMurabaha is a fixed-rate mode of financing. The is a fixed-rate mode of financing. The rate, once determined for a given contract, is not rate, once determined for a given contract, is not allowed to float with changes in the interest rates allowed to float with changes in the interest rates or any other rate. or any other rate.

murabahamurabaha does not permit a roll-over. A rollover does not permit a roll-over. A rollover in in murabahamurabaha would imply that another separate would imply that another separate murabahamurabaha is booked on the same item. This is booked on the same item. This practice is inadmissible in practice is inadmissible in Shari'aShari'a..

Default Risk and Its Mitigation A major problem associated with A major problem associated with murabahamurabaha

financing relates to a possibility of default by financing relates to a possibility of default by customers. customers.

In the case of default or delinquency, the In the case of default or delinquency, the conventional financial system penalizes the conventional financial system penalizes the borrower with additional interest, which is borrower with additional interest, which is deemed as a compensation for the delay or time deemed as a compensation for the delay or time value of money. value of money.

Such practices are not allowed in case of Such practices are not allowed in case of murabahamurabaha. .

In dealing with the problem of delays and In dealing with the problem of delays and delinquencies, various alternatives have been delinquencies, various alternatives have been suggested. suggested.

1.1. to require the customer-in-default to donate a to require the customer-in-default to donate a specified amount for a charitable purpose as specified amount for a charitable purpose as financial penalty. financial penalty.

2.2. customers who default in payment deliberately customers who default in payment deliberately may be made liable to pay compensation to the may be made liable to pay compensation to the bank for the loss. bank for the loss.

3.3. in the event of payment default of a single in the event of payment default of a single installment that is due, the remaining installment that is due, the remaining installments will become due immediately.installments will become due immediately.

4.4. the bank to seek a security from its customer the bank to seek a security from its customer either in the form of a mortgage or in the form of either in the form of a mortgage or in the form of a lien or a charge on any of his/her existing a lien or a charge on any of his/her existing assets. The bank can also ask the customer to assets. The bank can also ask the customer to furnish a guarantee from a third party. furnish a guarantee from a third party.

5.5. to impose only non-financial penalty such as to impose only non-financial penalty such as imprisonment, or defamation. imprisonment, or defamation.

Rescheduling of Payments At times, rescheduling of installments is seen as At times, rescheduling of installments is seen as

a way out in the face of default. a way out in the face of default. In conventional banking, loan rescheduling is In conventional banking, loan rescheduling is

accompanied by additional interest charge for accompanied by additional interest charge for the timing differences. the timing differences.

MurabahaMurabaha does not allow such rescheduling as does not allow such rescheduling as no additional amount can be charged for the no additional amount can be charged for the same. The amount of the same. The amount of the murabahamurabaha price price remains unchangedremains unchanged.

Rebate on Early Payment Conventional financial system grants the

borrower a discount or rebate if the customer decides to pay earlier than the scheduled time.

Regarding Islamic financial system, majority view is that a rebate given for early payment, if stipulated in the contract, is not permissible.

However, if it is given voluntarily, it is allowed. However, most of present day Islamic banks do

provide for a rebate in case of early repayment. As a result, the customer will benefit from not paying the profit for the remaining period.

Securitization of Murabaha Debt The obligation of the debtor to pay is a monetary

indebtedness and hence is money. Money can only be exchanged with money at par.

Money cannot be sold or purchased at a lower or higher price. Thus the murabaha debt cannot be made into a negotiable instrument

MISUSE OF MURABAHA FINANCING

1.1. Selling of the item to the customer before the Selling of the item to the customer before the item is actually acquired by the Islamic item is actually acquired by the Islamic institution from the supplier. This mistake is institution from the supplier. This mistake is committed in transactions where all the committed in transactions where all the documents of documents of murabahamurabaha are signed at one time are signed at one time without taking into account the various stages of without taking into account the various stages of the the murabahamurabaha. .

2.2. MurabahaMurabaha can only be used where there is an can only be used where there is an item intended to be purchased by the customer. item intended to be purchased by the customer. Using Using murabahamurabaha for financing the overhead for financing the overhead expenses of a firm - such as paying salaries or expenses of a firm - such as paying salaries or electricity bills - is prohibited under electricity bills - is prohibited under Shari'aShari'a law. law.

3.3. Islamic financial institutions might implement Islamic financial institutions might implement murabahamurabaha financing on items that are already financing on items that are already purchased by the customers from a third party. purchased by the customers from a third party. Once the customer himself purchases the item, it Once the customer himself purchases the item, it cannot be purchased again by the bank from the cannot be purchased again by the bank from the same supplier. same supplier.

STRUCTURES OF MURABAHA There are three different structures of Murabaha:

1. Two – Party Structure

2. Three – Party Structure

3. Three – Party Structure with Customer as Agent

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CUSTOMER

OWNER OF ASSET

(3) Bank sells the asset to the customer ata selling price = $ 50,000 + profit margin

(4) The customers repaysthe bank by installmentsIf n = 60 months andprofit margin = $25,000monthly installment = $75,000/60

= $1250

AL-BAI-BITHAMAN AJIL FINANCING(SALE WITH DEFERRED PAYMENTS)

BANK

(2 )Bankpurchases theasset fromowner

(e.g. at $ 50,000)

(1 )Customer identifiesthe asset to beacquired

AREAS OF APPLICATIONS