Murābaḥah Penalty Clause is Ribā in Disguise! The Penalty Clause Questions the Deep-rooted Preference for Literal Interpretation over Substantial Interpretation of Ribā

In: Arab Law Quarterly
Faiza Ismail Shaikh Ahmad Hasan School of Law, Lahore University of Management Sciences, Lahore, Pakistan

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Following the literal interpretation of ribā, jurists have agreed that muḍārabah and mušārakah are legitimate modes of financing. As both arrangements are highly risky to manage in practice, murābaḥah has been introduced as an alternate mode of financing. Despite its extraordinary success, murābaḥah has led to moral hazard in the form of frequent delays in payments and defaults for which Islamic scholars have introduced a penalty clause as discouragement. Examination of the murābaḥah penalty clause instrument suggests that it is ribā, prohibited when interpreted literally. Moreover, the penalty clause has never been enforced in Pakistani courts. This article suggests that the literal interpretation based on the objectives of Sharīʿah (substantial interpretation) will prevent loopholes such as the abuse of the murābaḥah instrument and consequently the penalty clause as well and will lead to substantial compliance with the principles of Islamic finance.

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