Professional Documents
Culture Documents
Topic: Essay 1: A Comment About Hawalah Based On Shariah Standard
Topic: Essay 1: A Comment About Hawalah Based On Shariah Standard
WU YONG GS62823
1 / 14
TABLE OF CONTENT
1.Introdcution.......................................................................................3
2.Background.....................................................................................4--5
4.Conclusion.......................................................................................12
5.Reference..................................................................................... 13--14
2 / 14
1.0 Introdcution
There are many types of Islamic financing contracts that are recognized by law
and Hawalah contract is one of the concepts widely used in Islamic finance.(Bank
Raisi et al.( 2016 ) also illustrated that there is a general lack of understanding of the
Hawalah concept and details used by Islamic banks. Although Shari’ah Law strongly
Similarly, (“Message from the Editor,” 2013) considered that Hawalah contracts are
relatively new in Islamic finance literature and greatly strengthen the public’s
Standard (Islamic law). It claims that Hawalah is not only of great significance for
solving debt issues, but is mainly used by individuals, companies, and certain banking
systems to transfer their funds respectively(Ayub, 2007). However, Kasri, R., & Dewi,
M. K. (2011) pointed out the practical applications of Hawalah in real life still have
certain limitations could not be ignored due to the uncertainty of Hawalah in Shariah
Standard. Most importantly, the Hawalah contract is closely related to our lives.
When we are burdened with debts but are unable to repay them, we want to transfer
the debt to others but do not understand or misunderstand the content of contract will
lead to a lot of disputes and conflicts of interest. Therefore, to fill these gaps, based on
3 / 14
personal understanding, this essay will not only analyze the concept of Hawalah, but
Standard which include types of Hawalah, basic rules and conditions, And the paper
is organized into several sections. Section 2 will review the backrground of Hawalah,
section 3 discusses and analysis the specific clause of Shariah Standard and
Mughal, Munir Ahmad (2012) claimed that the word Hawalah in Arabic means
shifting a thing from one place to another. Technically, as a term of Islamic law, it
means the shifting or assignment of debt from the liability of original debtor to the
from the transferor to the payer. Moreover, certain previous researches also indicated
that the Hawalah is a debt transfer made by one person to another who owes him
4 / 14
based on mutual approval and acceptance (Nizaruddin, 2013 and Nurazizah,2008 and
Novanda Eka, 2020). Therefore, it can be concluded that Hiwalah is a contract which
caused the transfer of debt from one party to another.There is one thing need to be
noticed it is similar to the sale of debt but is not sale, it also resemble Kafalah and
Wakalah. The clause in Shariah Standard No.7 is article 3/1 approved it, which
In addition, there are three important parties in the Hawalah contract, which are
transferor( debtor), transferee and payer(new debtor) respectively. And the form of
transferee, the transferee and payer accepts the offer, as well. What’s more, transfer of
and another person, where the creditor transfers his right towards the debtor to another
person.
divide into two categories: Restricted Hawalah and Unrestricted Hawalah. In next
session, there is a specific explanation will be given based on the basic rule and
5 / 14
3.0 Analysis and discussion
To talk with the basic rules and conditions, there are some certain terms or
specifically. For example, at the page of 178 and article 6/1 of the Shariah Standard
No.7 stated that “ The permissibility of Hawalah requires the consent of all parties,
namely the transferor , the transferee and the payer.”. Although the law stipulates
that in order to maintain the validity of the Hwalah contract, all three parties must
agree.However, i think in some cases, the Hawalah procedure may not require the full
consent of all parties. For example, When a third party concludes a debt assignment
contract with the debtor, it must be approved by the creditor. Because the creditor may
not recognize the creditworthiness of the transferee and feel that he does not have
enough credit to complete the Hawalah contract, which may affect the risk that the
creditor agrees to take. And If the third party does not have sufficient capacity to
perform the debt, the interests of the creditor cannot be guaranteed. At the same time,
the debtor also has the right to determine how to repay his debt to creditor in any form,
therefore, Hawalah contract will be invalid without his consent. However, the
permissibility of Hawalah contract may not require the consent of the transferee.
Hanbalis also regarded that creditor and transferor are told that debt transfer is
sufficient. they believed that the consent of the transferee is not required because they
thought the debtor may collect debts from the transferee by himself or through an
agent. In this regard, the main debtor has designated the creditor act as its agent for
6 / 14
collecting debts from the transferee.In this regard, which does not require the consent
In addition, most people think that the agreement of the principal debtor will
affect the validity of the Hawalah contract. For example, a famous jurists , Al-Buhūtī
agreed that only the consent of principal debtor can be considered as a condition of
making Hawalah contract to be valid and also concluded that transferee and creditor
However, in my opinion, the progress of the hawalah contract also may not require
the consent of debtors. We know that if the debtor transfers all or part of the contract’s
obligations to a third party, the creditor’s consent should be obtained. This is different
from the transfer of creditor’s rights, which is a clear requirement of the law for the
purpose of protecting creditor’s rights. If the creditor expressly disagrees, the debt
contract cannot take effect. Under normal circumstances , it should be noted that a
third party enters into Hawalah contract with the debtor and is accepted by Shariah
Standard with the consent of creditor. Nevertheless, there is another situation in which
a third party concludes a Hawalah contract with the creditor. According to judicial
practice, the debtor’s consent is not required in principle at this time, but notification
Specially, The same views of some classical and contemporary jurists coincide
with mine. According to a popular view of Hanafi, which pointed out that “a transfer
of debt is valid without the consent of the principal debtor, since the transferee’s
7 / 14
acceptance of transferring liability to himself is a personal matter than only
cannot be separated from the consent of the creditor.To obtain the consent of the
creditor is necessary condition, and the consent of the debtor and transferee must be
Overall speaking, i think this clause in Shariah Standard is not detailed enough,
and these special circumstances are not taken into account, which is quite different
from the actual application of Hawalah. Therefore, in order to make this clause of the
Hawalah contract easy to understand, I suggest adding to the clause that obtaining the
creditor’s consent is a necessary condition for the Hawalah contract to be valid, and
the transferee’s and debtor’s consent is not necessary in some situation and explain
In addition, at the page of 178 and article 6/5 of the Shariah Standard No.7 stated
that “ It is a condition in Hawalah that both the transferred debt and the debt to be
used for settlement be known and transferable.”. Based on this clause, I think its
description is not complete enough. And there is no detailed description of the nature
of the transferable debt.It is not clear about what kind of debt can be defined as
transferable. If the debt that the creditor requires to be repaid can only be in cash, but
the new debtor repays the debt in other forms, such as online payment, share payment,
8 / 14
etc., then such debt should belong to non-transferable debt, so the Hwalah contract
will also be invalid. Most importantly, the transferable debts must be consistent with
the transferee’s debts to the transferor in terms of kind, type, quality and amount. This
condition is also mentioned in the article 6/6 of Shariah Standard .If there is any
exchange of one debt for another debt, Riba is more likely to occur in such situation.
On the other hand, jurists have permitted that the debt assigned in Hawalah must
since the transfer of liability may only be effected for fungibles.However, even if the
transferable debt meets these two requirements, but in my opinion, under certain
special circumstances, the debt cannot be transferred to a third party and the Hawalah
contract cannot be formed. For instance, the first situation is that if the debt is closely
person, alimony payment is one category of special debt that must be repaid by
The second situation is that the parties specifically agree that the debts that
cannot be transferred and the obligations of omission can only be borne by the agreed
or specific parties, and cannot be transferred to others. For example, company B owes
company A $500,000. In the debt contract, company A clearly stated that it would not
accept the debt transfer, and company B can only perform its responsibilities, because
company A has cooperated with company B for many years, and the trust between
them is very high, company A do not believe in the credit and ability of the third party,
9 / 14
and fear that the transfer of debt will bring about loss of profit and unnecessary
troubles.
To summarize that, the transfer of debt not only depends on the consent of the
creditor, but also on the nature of the debt itself. In addition to the creditor’s
disapproval of the assignment and the inability to form a Hawalah contract due to the
of the debt. In addition, when the contract is signed, the parties clearly agree that this
debt can not be transferred, so the debtor also has no right to transfer the debt. In the
terms of Shariah Standard, I did not see any specific instructions. Therefore, based on
personal understanding, I suggest that the detailed description of relevant laws and
There are many factors will cause the termination of the Hawalah contract.And
the termination of the Hawalah contract is clearly mentioned in the Shariah Standard
at the page of 180 and section 11, which states:“A Hawalah liability will come to an
being written-off by the transferee.”. It clearly stated that A Hawalah contract could
10 / 14
be terminated if parties make an agreement or the debt was paid back completely by
debtor.In addition to these circumstance that will lead to the termination of contract, i
think there are some other reasons that will also cause the termination of the Hawalah
contract. For example, cancellation of the contract is also a way to terminate the
shall not be annulled due to the death of the payer or the liquidation of the
Institution acting as payer. ” Normally, the transferee will have the right to recover
the payer’s inheritance, and the personal guarantor, or liquidated pre-allocated assets.
Therefore, in such a normal situation, a Hawalah contract still could be valid. But, i
think if the payer dies in bankruptcy, is insolvent and has no immediate family
the creditor is unable to recover from the payer, he only can require the original
debtor to repay the debtor.For the debtor/transferor, the death of the payer and the
absence of anyone to recover directly lead to the termination of the Hawalah. It can be
concluded that such an extreme case is relatively rare, but it also exist. Therefore, in
order to make the Shariah Law more stringent, I suggest adding payer requirements to
the conditions of the Hawalah contract. For example, the payer is required to have a
good faith guarantor or institution to guarantee its debt repayment ability and ensure
that the creditor’s debtor can be repaid normally, and to avoid contract disputes.
11 / 14
4.0 Conclusion
Shariah Standard, it can be summarized by following three points and given some
recommendations.
1. The validity of the Hawalah contract may not require the consent of all
the past to sum up the results of the adjudication, because special cases should be
treated specially to facilitate the judgment of the same special events in the future, and
at the same time to prevent the public from taking advantage of legal loopholes to
2. The description of transferable debtor is not specific enough, there are many
p178)
judge the disputed situation and give relevant explanation will be a good method to
3. The reason for the termination of Hawalah contract is not complete enough.
And it is not considered that in extreme cases, the death of the payer will also lead to
12 / 14
5.0 Reference
Al Raisi, A. K. S. D.; Rodriguez, I.; Tustikbayev, M.; Omarova, N.; Abdul Rahman,
A. W.; Muneeza, A.(2016), "Implication of Ḥawālah in Islamic Finance
Practice", International Journal of Management and Applied Research, Vol. 3, No.
3, pp. 109-119. https://doi.org/10.18646/2056.33.16-009
https://ejournal.metrouniv.ac.id/index.php/adzkiya/article/view/1051
13 / 14
Nurazizah, N. E. (2008). Implementasi Akad Hiwalah dalam Hukum Ekonomi
AhwalSyahsiyah,5(2),59-74.http://ejournal.kopertais4.or.id/sasambo/index.php/t
afaqquh/article/view/3977
https://doi.org/10.1108/13685200510621181
https://www.imf.org/external/np/leg/sem/2002/cdmfl/eng/wilson.pdf
14 / 14