Bay al-Murabaha lil-Amir bil-Shira
- Author died
- -
- Editions
- Printed at the expense of Bayt al-Mal al-Filastini al-Arabi Company
Bay al-Murabaha lil-Amir bil-Shira (Murabaha Sale to the Purchase Petitioner) is a contemporary Islamic legal study by the Palestinian jurist Husam al-Din Afana, examining the jurisprudence and practical implementation of cost-plus financing in Islamic financial institutions.
Background and Context
The study was prepared by Afana in his capacity as the head of the Sharia Supervisory Board of Sharikat Bayt al-Mal al-Filastini al-Arabi (the Arab Palestinian Bayt al-Mal Company), established as the first institution in Palestine to operate according to the rules of Islamic law. As introduced by the company's general director, Dr. Muhammad Sarsur, the publication sought to clarify the mechanics of the contract, articulate its legal foundations, and address the doubts and objections surrounding its practice in modern Islamic banking.
The author notes that while classical jurists treated traditional murabaha (cost-plus sale) as a form of trust sale (bay al-amana), the contemporary term al-murabaha lil-amir bil-shira was coined by Dr. Sami Hammud in his 1976 doctoral dissertation at Cairo University under the guidance of Muhammad Faraj al-Sanhuri, after which it became the predominant financing mode in Islamic banks.
Structure and Legal Content
The work combines theoretical legal analysis with applied institutional documentation:
- Classical Foundations: The text outlines the definitions and rulings of murabaha among early Muslim jurists, citing textual proofs from the Quran, the Sunnah, and juristic consensus on the permissibility of cost-plus transactions based on mutual consent.
- Contemporary Juristic Debate: It categorizes the operational forms of the transaction and details the disputes among contemporary scholars regarding its permissibility. The author examines the arguments of opponents—such as allegations that the transaction constitutes a legal stratagem to circumvent usury (riba), resembles two sales in one, or involves selling what one does not own—and answers these objections, arguing for the validity of the contract as the preponderant view when standard legal conditions are fulfilled.
- Practical Application: The book presents the practical execution of the contract within the Arab Palestinian Bayt al-Mal Company, incorporating sample forms, documentation protocols, and procedural stages starting from the purchase order to the final deferred sale.
Conclusions and Recommendations
Afana concludes that murabaha to the purchase petitioner is a valid contract provided that the institution takes actual possession and ownership risk of the goods before selling them to the ordering client. He urges Islamic financial institutions and their staff to maintain the commercial mindset of a Muslim merchant rather than that of a conventional financier seeking rapid returns without risk, and recommends diversifying beyond murabaha into other lawful modes of investment, such as mudarabah, musharakah, salam, and istisna.
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