المخاطر القانونية والشرعية في المعاملات المصرفية الإسلامية عقد المرابحة في بنك الجزيرة السعودي نموذجا

Abstract

In the last three decades, the number of Islamic finance institutions and banks has doubled and expanded intensively. These banks provide Islamic financing through several models such as "Murabahah", "Musharakah", "Tawaruq", "Lease ending with ownership", etc. These models face different types of risks which may cause losses to the banks or their clients; among these are legal risks. The Murabahah model is mostly known among Islamic financing models. In Saudi Arabia, for example the, “Murabahah” is considered the most well-known and expanded model in all Saudi banks in general and in Aljazeera Bank in particular. All MurabaÍah transactions are executed through contracts or agreements within a frame that contains all rules and conditions relating to the rights and obligations of each party and the jurisdiction that the contracts are subject to. Four methods were adopted in this research to achieve the intended goals and objectives which are: inductive method by extrapolating the sayings of scholars in Fiqh and contemporary researchers in the field of Islamic finance, analytical method by analyzing forms, contracts and information related to the risks and to Murabahah contracts in order to address loopholes and remedy mistakes, deductive method by intensively studying the Murabahah contracts of Aljazeera Bank in Saudi Arabia, addressing the gaps of Islamic or legal nature whether from formality or objectivity sides and identifying the application or implementation of such contracts, and lastly, survey method by arranging meetings with Aljazeera Bank management and exploring the attitude of the bank`s Islamic Committee (Hay´ah Shar'iyah). Finally, many conclusions have been achieved in this research: The majority of the literature that address the risks of Islamic financing transactions have covered in detail the risks related to finance or Shar'iyah but little attention has been paid to risks of legal nature in spite of its importance. Many loopholes and mistakes in MurabaÍah contracts of Islamic banks whether in drafting or in implementation were discovered in this research. Aljazeera Bank in Saudi Arabia has succeeded relatively to avoid many gaps in its Murabahah contracts while some other banks have problems in their MurabaÍah contracts. It is found that the bank is more flexible with its clients more than other banks with regard to terms and conditions of Murabahah contracts.