SECURITY CONTRACT AND SUPPORTING CONTRACT

➔ KAFALAH CONTRACT (GUARANTEE)

➔ Definition
◆ Kafala = to join / to merge
◆ A contract to guarantee a debt or an obligation of a guaranteed person
(beneficiary) relating to certain assets, usufruct, or services.
◆ BNM = Kafalah means conjoining the guarantor’s dhimmah (liability) to the
guaranteed party’s liability ▶ in a way that the debt or other responsibility of the
original bearer is established as a joint liability of the two of them.

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➔ Legality (permissible in Islam)
◆ Al-Quran
- Yusuf: 72 = They said: “We have lost the (golden) bowl of the king and for him

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who produces it is (the reward of) a camel load; and I will be bound by it (za’im)
- [Za’im = Kafil i.e. guarantor]

◆ Al-Hadith

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- Sunan Abu Dawud = “a guarantor is the one who bears the liability”
- Sahih Al-Bukhari = The Prophet (pbuh) came to the funeral of a man to pray on
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his soul. He asked those present: “did he leave any wealth?”, they said, “No”.
Then he asked, “did he die with any debts outstanding?”, and they said “yes, he
owed two Dinars”. The Prophet (pbuh) was about to leave when he said “then
pray on your companion.” Abu Qatadah then said: “I guarantee his debt, Oh
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Messenger of Allah”, and then the Prophet (pbuh) prayed on his soul.
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➔ Conditions on Kafalah
◆ Contracting parties [1. Guarantor/ 2. Debtor/ 3. Creditor]
● Must be a natural person and sane
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◆ Akad [Offer & Acceptance]

● Must explicitly or implicitly denote guaranty.
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● Must signify the establishment of a guaranty.

● May not be timed in financial guaranty (the objective is repayment), or
physical guaranty (the objective is delivery).
● May be expressed verbally or by appropriate documentation or by other
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methods accepted by customary business practices- as long as the

method does not contravene Shariah principles.

◆ Subject matter of Kafalah

● 2 types; kafalah al-dayn & kafalah al-’ayn
● Kafalah al-dayn (guarantee of a debt liability)
○ Legally binding debt (dayn lazim); or
 ○ A debt that will become legally binding in the future (ma ya’ul ila
luzum)

● Kafalah al-ayn (guarantee to deliver physical assets)

○ May take the form of a guarantee of the performance of a certain
act by the debtor; or a guarantee of fulfillment of an undertaking by
the debtor.

● Overall, as long the subject matter is not any obligation arising from any
non-Shariah compliant contract ▶ object of kafalah can be considered as

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valid

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● Example of subject matters of kafalah;
○ A financial liability or obligation of the debtor that is already
established or will be established in the future

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○ Performance of a certain act by the guaranteed party
○ Fulfillment of an obligation by the guaranteed party
○ A combination of any or all of the above

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➔ Application of Kafalah in Modern Islamic Financial Transaction
➔ See Section 2(g) of IFSA 2013 (under “provision of finance”)
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1. Personal Guarantee
a. The cust is required to have a guarantor to provide a personal guarantee to
ensure payment of the financing.
b. If fail ▶ both guarantor and debtor will be jointly liable to discharge the liability to
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pay ▶ and the creditor has the right of recourse against both the debtor and
guarantor - without absolving the liability from the debtor.
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c. Modus Operandi
i. The customer requests financing from the Bank based on a particular
Shariah principle.
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ii. The Bank agrees to grant financing based on a particular Shariah

principle subject to the customer’s fulfillment of conditions; ie: to provide
security for the financing.
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iii. A third party agrees to give a personal guarantee as security for the
financing. Upon receiving the guarantee, the Bank will release the
financing facility to the customer.
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2. Bank Guarantee
a. Normally issued for the purpose of tender guarantee, performance guarantee,
guarantee for sub-contract, guarantee for securities deposits, guarantee for
exemption of customs duties, guarantee for custom bonds, credit or supply
guarantee, advance payment guarantee, and other purposes.
b. A contract between the bank and another party where the bank agrees to
discharge the liability of its customers in case of default or failure of the customer
to fulfill his obligations under the terms and conditions of the guarantee.
 c. Hence, in the event of a default by the cust, an Islamic bank is obliged to pay the
agreed sum to the third party.
d. Modus Operandi
i. The customer makes an application from the bank for the issuance for the
letter of guarantee. The customer places a deposit into the bank’s
account to cover fully or at least partially the value of the letter of
guarantee under the principle of wadiah.
ii. Upon satisfaction of the customer’s credit standing, the bank issues a
letter of guarantee to the third party and agrees to assume liability of the
customer in the event of default or breach of contract between the

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customer and third party.

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iii. The third party will then perform the contract with the customer. If the
customer performs the contract without any default, the letter of
guarantee is returned to the bank for cancellation upon expiry.

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iv. In the event of a default or breach of contract by the customer, the third
party will claim the payment/amount from the bank based on the letter of
guarantee.

3. Islamic Credit Card

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a. The bank as the card issuer, acts as the guarantor and undertakes all the
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obligations to pay for the transaction between the customer and merchant or
cash withdrawals made by the customer from other banks.
b. In this regard - such Islamic banks being the card issuer can accept a fee from
the customer for the services offered.
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c. The fee is determined in advance at the conclusion of the contract ▶ and the term
is FIXED.
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d. Modus Operandi
i. Customer as the card holder purchases goods from the merchant.
ii. Islamic bank provides guarantee for the said purchase to the merchant.
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iii. Merchant sends all the documents relating to the said purchase to
Visa/Mastercard.
iv. Based on the related documents, Visa/Mastercard makes payment to
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merchants.
v. Subsequently, Visa/Mastercard claims the amount paid to the merchant
from the Islamic bank.
vi. Islamic bank issues the statement claiming the payment from the
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customer.

4. Islamic Deposit Insurance System

a. This system provides takaful protection for depositors against the loss of their
deposits placed with the bank in the unlikely event of a bank’s failure.
b. Islamic bank as the guaranteed party will pay a fee in the form of annual
premiums for the guarantee given by PIDM.
 c. In return, PIDM will be responsible to provide reimbursement to depositors in
cases of loss.
d. Modus Operandi
i. Customer deposits his money in Islamic Bank.
ii. Islamic bank pays kafalah fee to PIDM
iii. PIDM provides guarantees that in the case of loss of Islamic bank, PIDM
will reimburse the money deposited by the customer.

➔ Cari Kes

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➔ RAHN (PLEDGE : GADAIAN/CAGARAN)
➔ Definition
◆ Rahn (derived from Arabic word ‘Rahana’) = To hold or to bind
◆ Literally = Constancy or continuity
◆ Technically = Taking a property as security against debt, in which the secured
property can be utilized to repay the debt in case of default

➔ Legality (permissible in Islam to pawn (menggadai) as one of the alternative

means of documenting debt)
◆ Al-Quran

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- Al-Baqarah (2:283) = “And if you are on a journey and cannot find scribe, then a

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security deposit should be taken”

◆ Al-Hadith

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- Sahih al-Bukhari = Rasulullah bought food on credit from a Jew and gave his
steel armor as collateral towards the seller

➔ Features of Rahn

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1. Contracting parties (rahin & murtahin)
a. Consists of chargor (rahin) and chargee (murtahin)
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b. Both must have legal capacity to enter into contract
i. Must be a person of a legal age
ii. Sane
iii. Free from any legal impediments (halangan/kecacatan)
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c. May be entered by a legal entity (ie: a company;etc)

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2. Offer and acceptance (sighah)

a. There must be an offer and acceptance between the contracting parties
b. Must be conducted in clear and understandable language in one continuous
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session.
c. Hanafi Scholars ▶ sighah should not be suspended by any condition or deferred
to a future date
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d. Other jurists ▶ A condition may be imposed, provided it is a valid condition that

does not contradict the implication of the contract and does not lead to a
forbidden transaction.
i. Eg: The creditor can sell the pawned object upon debt maturity/etc
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3. The charged object (marhun)

a. The charged object is required to fulfill the conditions of a sale object ▶ as it will
be subjected to a sale upon non-repayment of debt.
b. Maxim: “properties ineligible for sale are ineligible for charge/mortgage”
c. The conditions include the object must be;
i. a valuable property
ii. A permissible item
 iii. Existent at the time of the contract
iv. Deliverable
v. Precisely determined in essence, quantity and value
vi. Of sufficient value to cover the debt amount
vii. In the creditor’s possession
viii. a non-fungible property nor usufruct

4. The debt (marhun bih)

a. An underlying debt must be established, binding and enforceable ▶ either through
loan, sale, or damages in torts against property

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b. NOT ELIGIBLE as underlying debt IF the property is;

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i. In the possession of others
ii. Being a leased property in the hand of a lessee
iii. Being a capital in musharakah

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c. Must be known to BOTH CONTRACTING PARTIES
d. If uncertain = the charge is INVALID = must be liable to be paid off.

➔ Application of Rahn in Islamic Banking

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1. AITAB/AIMAT/MM/Tawarruq created debt/liability on the customer
2. As a security to the payment, the bank will usually require the customer to charge a
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property as collateral ▶ so that in the event of default = the financing may be satisfied out
of the value of the security or the financed asset
3. Assets = includes real estate, shares, investment certificates, etc.
4. The charge is created principally based on the concept of rahn
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5. Modus Operandi
a. Bank provides financing of RM200K to cust for purposes prescribed in the Letter
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of Offer
b. Customer charges his property to secure payment for the financing amount.
c. Customer pays the financing amount according to the financing agreement
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d. Bank discharges and returns the property to customer upon the satisfaction of
the facility
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➔ Application of Rahn in Pawn-Broking (business of advancing loans to customers

who have pledged household goods or personal effects as security on the loans)
1. Where a customer pledges his valuable property - (normally in the form of gold) - to the
bank in order to obtain a benevolent (murah hati) loan ▶ whereby the customer is only
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required to pay the same amount borrowed.

2. The customer will pledge his valuable property as security under the principle of ar-rahnu
for the loan granted by the bank.
3. THE AMOUNT OF LOAN WILL DEPEND ON THE VALUE OF THE VALUABLE
PROPERTY PLEDGED TO THE BANK
4. The valuable property accepted as security will then be kept by the bank under the
principle of wadi’ah
5. The bank will charge the cust a safe-keeping fee for the services rendered
6. The loan is for a short term (usually 6 months) + repayment will be in a lump sum or in
installment after the maturity date.
7. Upon the satisfaction of the loan ▶ the bank will return the security to the customer.
8. Modus Operandi;
a. Customer approaches bank to obtain benevolent loan
b. Bank agrees and provides benevolent loan to cust and req cust to charge his
valuable property
c. On the maturity date, the cust makes full settlement of his loan plus the
safekeeping fee to the bank
d. Bank returns the property to cust upon satisfaction of the loan.

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➔ CASE: Dato’ Hj Nik Mahmud Daud v Bank Islam Malaysia Berhad [1996]

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➔ WAKALAH (AGENCY)
➔ Definition
◆ A contract of appointment of an agent where a person appoints another as his
agent to act on his behalf.
◆ Muslim Jurists;
● Shafiis = The delegation of one living person to another of the
performance of an act that permits delegation, and that the first person is
permitted to perform himself.
● Hanafis = The delegation of one person (the principal) for another (the
agent) to take his place in a known and permissible dealing.

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➔ Legality (permissible in Islam)
◆ Al-Quran:
- Al-Kahfi = “So send one of you with this money to the city, so that he can see any

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good food that he can bring to us as sustenance”

◆ Al-Hadith:
- The Prophet (pbuh) sent agents to collect the zakat

◆ Ijma’
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- Agency contracts are permissible, since individuals often cannot administer all of
their affairs, and thus have a need to commission agents.

➔ Conditions
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1. Transferor/Principal Debtor
a. Capable of accepting responsibility
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b. Not restricted from dealing in business transaction

c. Not forced to enter into contract
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2. Transferee and Transferred Party (supplier/vendor)

a. Must be eligible for the contract
b. Must consent to the transfer of debt
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c. Acceptance must be issued by the transferred party during the contract session

3. Subject Matter
a. Must be a debt - the transferor must be a debtor to the transferred party
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b. The debt must be binding

4. Offer & Acceptance

a. In definite and decisive language
b. The principal must make a verbal offer to establish his consent to agency, either
explicitly or metaphorically.
i. Eg: “You are in my place for selling this house”.
c. Acceptance must agree with offer
 d. Offer and acceptance must be made in the one and the same meeting.
e. The contract MUST NOT be suspended pending a condition.
i. Eg: “If so-and-so- returns from his travels, then you are my agent for
such-and-such). = NO WAKALAH

➔ Application of Wakalah
1. Modus Operandi
a. Customer A (transferor) has a debt with Supplier/Vendor amounting to RM15K
b. Cust A assigns his debt to the Bank (evidenced by invoice;etc)
c. Bank (transferee) acts as agent to cust A - pays RM15K to the Supplier/Vendor

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(transferred party).

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d. Upon maturity, Cust A shall pay RM15K + Agency Fee to the Bank.

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➔ HIWALAH (TRANSFER OF DEBT)
➔ Definition
◆ Transferring a claim of a debt by shifting the responsibility from one person to
another
◆ A transfer of debt from a debtor (transferor) to another (transferee)
◆ Once the transferee has accepted the transfer of debt ▶ the transferor would be
released from any obligation to pay the debt ▶ the creditor can now claim his debt
only from the transferee.

➔ Legality (Permissible in Islam)

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◆ Hadith

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- “Procrastination (delay) in paying debts by a wealthy man is injustice. So, if your
debt is transferred from your debtor to a rich debtor, you should agree”.
- Majority jurists: It is preferred to accept the transfer of debt, but that is not an

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obligation ▶ Merely a recommendation of Shariah.

◆ Ijma’
- Jurists have permitted transfers of debt for the transfer of fungible debts.

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However, it is not permissible for non-fungibles since the transfer of liability may
only be effected for fungibles.
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➔ Conditions
◆ Principal Debtor
● Must be eligible to conduct Hiwalah contract : Legal age and a sane mind.
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◆ Creditor and Transferee (third party)

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● Must be eligible for the contract (sanity & legal age).

● Must be consenting to transfer of debt.
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◆ Subject matter (transferred item)

● Must be a debt
● The debt must be binding
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◆ Offer and Acceptance

● Verbal or written offers and acceptance.
● Offer and acceptance must take place during the contract session, and
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the contract is binding and does not admit contract session or conditional
session.
● Eg:
○ Offer by principal debtor: “I have transferred your credit to so and
so”.
○ Acceptance by debtor: “I agree”.
➔ Types of Hiwalah
1. Absolute Hiwalah (mutlaq)
a. Refers to that contract where payment is not restricted to the property of the
transferor in the hands of the transferee.

2. Conditional Hiwalah (muqayyad)

a. When it contains a stipulation that the creditor’s debt may be paid up from the
debt of the debtor due from the transferee or anything belonging to the debtor,
which the transferee keeps as security.

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➔ Application of Hawalah in Islamic Banking

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1. Can be found in a few situations (eg: The issuance of a cheque against a current
account, traveler’s cheque and remittance [transfer of money])
2. Modus Operandi

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a. Transfers of right to the debt (Hawalah al-Haq) (TRANSFEREE YANG GI
CLAIM HUTANG KT DEBTOR)
i. The principal creditor (transferor) offers the third party (transferee) the
right to claim payment from the debtor.
ii.

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The execution of the contract results in the change in the creditor, from
transferor to transferee - making it comparable with sale of debt at par
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value.

b. Transfer of the debt (Hawalah al-dayn) (TRANSFEREE YANG KENA BAYAR

HUTANG KT CREDITOR)
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i. The principal debtor offers to transfer the debt to the transferee.

ii. It will change in the debtor but not the creditor
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iii. The creditor has the right to obtain recourse and reimburse the debt from
the principal debtor.
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➔ HIBAH (GIFT)
➔ Definition
◆ A transfer of ownership of an asset from the donor to a person (beneficiary)
without any consideration in return ▶ GIFT
◆ Gift from one living person to another without usurping or neglecting the rights of
his descendants and near relatives.
◆ In principle, property owners can give their property as hibah to anyone they
want.
◆ Hibah may be granted to heirs or non-beneficiaries ▶ The transfer will take effect
immediately during the grant or during lifetime

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➔ Legality (favorable in Islam)
◆ Al-Quran
- Surah An-Nisa (4:4) = “…But if they give up willingly to you anything, then take it

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in satisfaction and ease.”
- Surah Al-Baqarah (2:177) = “...and gives wealth, in spite of love for it, to relatives,
orphans, the needy, the traveler, those who ask [for help], and for freeing slaves.

◆ Al-Hadith

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- Reported from Anas = “Meat was brought to the Messenger of Allah (s.a.w) and it
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was said that it was given to Barirah as a charity. Rasulullah (s.a.w) said: “For her
it is a charity, and for us it is a gift.”Narrated by Aisha, the Prophet (s.a.w) used to
accept gifts an “Exchange gifts so that you may love one another”
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➔ Conditions
1. Donor (wahib) ▶ Person who gives the hibah
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a. Eligible to give his property voluntarily to another

b. Must be legal owner of the object
c. Mukallaf (legal age)
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d. Rusyd (mature)

2. Donee (mawhub lahu) ▶ Person who receives the hibah

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a. Any man with or without legal capacity

b. If the donee has legal capacity, he/she can receive (qabd) gift by him/herself. If
he/she is not eligible recipient, the receipt (qabd) has to be done by his legal
guardian
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3. Subject matter/gift (mawhub)

a. Every object which is legally tradable from shariah perspective is considered
legal to be given as a gift.
b. The object must be in existence in the time of contract
c. Must be valuable property
d. Donor must be the owner
4. Offer and acceptance (Ijab & Qabul)
a. A pronouncement or deed that carries the meaning of the grant and receipt of
hibah.
b. It is subject to the following conditions:
i. There is a connection and similarity between ijab and qabul.
ii. No specific condition.
iii. Not required for a certain period of time
c. Examples of the pronouncement of a clear (sarih) ijab is when a donor says;
i. “I give these things to you”; or
ii. “I have given the entitlement to you” or

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iii. “I have made this to become yours”.

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d. Examples of qabul (acceptance) pronouncements are such as;
i. “I accept”,

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ii. “I am willing”,
iii. etc

e. In Islamic law, a certain hibah is made valid with the presence of ijab and qabul

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either verbally or in any manner which carries the meaning of giving away of
property ownership without repayment (iwad).
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➔ Acceptance of Goods (Al-Qabd) in Hibah
◆ Al-Qabd = getting something and tasarruf (managing) can be done onto the
goods or property.
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◆ Hambali & Maliki Scholars

- The receipt of goods is not a condition in a hibah ▶ but enough with the
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solemnization contract (aqad) alone.

- Thus, in the event of death of either one of the parties of either the hibah provider
or receiver - before the delivery of the goods, then the hibah is considered as
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valid.

◆ Abu Hanifah and Shafie Scholars

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- The receipt of goods is one of the conditions to validate the hibah.

- Therefore, in the event of death of either one of the two parties prior to the
delivery of the goods, then the hibah becomes null and void.
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◆ Shafie Scholars
- Al-Qabd is a pre-condition ▶ meaning the hibah contract is not complete and
does not become effective with just ijab and qabul alone, unless AFTER the
al-qabd.
- If al-qabd does not take place then the hibah contract is not a binding contract.
Therefore,the hibah provider has the right to withdraw the grant as long as the
property is in his possession
➔ Hibah At The Time Of Marad Al-Mawt (Death Sickness)
➔ The gift made by a person who is seriously ill that may cause death.
➔ The following conditions are required to determine marad al-mawt, namely:
◆ The illness is the cause of death of the deceased.
◆ The illness has caused death anxiety in the mind of the deceased.
◆ There are external signs which show that the illness is severe.

➔ Under the Islamic law, such a gift involves two types of laws namely the laws of hibah
and will.
◆ If the hibah provider dies following the pronouncement of hibah, then the gift is

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exactly the same as a gift through a will and is subject to the laws of will namely:

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● The gift cannot exceed 1/3 of the total inheritance of the deceased.
● The gift is not given to an heir unless the other heirs have agreed.
◆ However, if the hibah provider lives, the grant shall be included in hibah law and

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subject to the laws of hibah while living ▶ namely the assignment of ownership
rights by the hibah provider to the hibah recipient

➔ Revocation of Hibah
◆ Hanafi:

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- Permissible for the donor to recall/revoke the hibah (gift) as long as
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no legal restrictions forbidding the revocation.
- But this act is considered as makruh – the one has the right to refuse to return
the gift.
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◆ Maliki, Shafie and Hanbali:

- Not permissible for the donor to revoke the gift after qabd is made.
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- Ownership of the gift is established by ijab and qabul and becomes binding
through qabd.
- Except for father and mother giving a gift to his son
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➔ CASES
1. Harun Muda & Ors. v. Mamat Mandak & Ors
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a. Facts: The case involving disputes on hibah raised by the plaintiff on a piece of
land. Among the claims made by the plaintiff was to confirm that the land was a
hibah from the deceased (Muda binTahir) to them. In addition, the claim was also
made to the court to convict that the land belonged to the plaintiffs based on the
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valid portions that were declared.

b. Held: The Terengganu Syariah High Court ruled that the plaintiffs’ claims
to the extent of each individual’s area specified was authentic and was
satisfied in the truth of the claim and concluded that it was indeed hibah by the
deceased to the plaintiffs.In the above case, Terengganu Syariah High Court
opined that hibah had taken place even though qabul happened through
actions whereby after ijab, the property had been developed, or worked on, or
benefited by the defendant
2. Salmiah binti Che Mat vs Zakaria bin Hashim
a. However, in this case, Syariah Subordinate Court Bukit Mertajam Penang opined
that hibah was invalid even though qabul to ijab had already been done via
actions.
b. In giving the ruling in this case, the Court produced a series of questions:The first
issue raised was whether or not the case abided by the rules of hibah.
c. The Court found that the rules of the hibah provider, receiver and goods were in
sufficient conditions as were required by Islamic law.
d. However, for the rule of sighah, the Court found that it was not sufficient and
hadn't been implemented as there was only the ijab from Che Mat but no qabul

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from the defendant either verbal or in writing.

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e. Thus, the Court deemed the hibah of the defendant Che Mat invalid because the
rule of sighah was not carried out and not fulfilled.
f. In this case, it is clear that the Court did not recognize the defendant’s usage and

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development on the land by building a house as qabul.
g. However, among other reasons, the Court did not verify that the hibah was valid
because the use and development undertaken on the land was carried out before
the hibah giver gave permission.

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h. This is because in the opinion of the Shafi and Hambali sects, the condition of
taking the goods/property is with the consent of the hibah provider.
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3. Eshah binti Abdullah and Five Others v. Che Aminah binti Abdul Razak and Two
Others [2004]
a. Facts: In this case, the donor had died and there was no withdrawal of hibah.
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The building in disputestill bore the name of the deceased although the
gift had been witnessed by others.
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b. Held: TheTerengganu Syariah Appeal Court accepted the appeal made by the
petitioners based on the accepted qarinah (evidence) from the receiver, where all
the three hibah receivers declared that they have been receiving the rental/lease
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(tenancy) of the disputed building since the deceased was still alive.

4. Awang bin Abdul Rahman v Shamsuddin Bin Awang & Seorang lagi [1998]
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a. Facts: The plaintiff claimed that the disputed land was the jointly acquired
property belonging to his deceased mother and the deceased stepfather.
b. The father had divided the land into 2 parts without any consideration after the
death of the wife. Hence the court intervened by suggesting that there existed
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elements of hibah.T
c. The claim of harta sepencarian by the son on behalf of the mother failed during
the lifetime of the mother, she never claimed for the property. Therefore,the
plaintiff is not entitled to claim.
d. The court then proceeded to determine the condition for the donee. According to
the plaintiff, the donee was his mother.
e. The donee must be a person who must have the capacity to hold the property,
but the mother has died for almost a month at the time of the gift. The mother
had no capacity to hold the land,hence the hibah was not valid.
f. If the donee was the plaintiff himself, the issue was whether the plaintiff had
taken possession over the land once he accepted the gift. The acceptance may
be impliedly made by doing some improvement over the land such as cultivating
or building a house on the land. However, there was no such thing done by the
plaintiff.
g. Held: Hence, the hibah was not effective

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