Ijara by Hamad Rasool

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IJARAH

Presented by:

Hamad Rasool BhullarDirector Research & Development

AlHuda Centre of Islamic Banking &Economics

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Overview

Ijarah Essentials of Ijarah AAOIFI Shari’a Standard No. 9 Mechanism and Usage Risks and Issues Comparison with Conventional Leasing Documentation Ijarat ul Ashkhaas Some Common Misconceptions

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IJARAH (LEASING)

IJARAH AL ASHKAAS

IJARAH AL AI’YAN

Ijarah (Operating Lease)

Ijarah Muntahia Bittamleek

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IJARAH (LEASING)

Ijarah is to offer for a consideration the usufruct of a thing of value from which benefit can be derived without consumption, while retaining the ownership of the leased assets and assuming risks pertaining thereto.

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This is a lease that ends with the ownership of the asset.

There are several types of Ijarah Muntahia Bittamleek. These are characterized based on the method by which the ownership transfers to the user: For no consideration (through a gift) For token consideration For price specified in the lease For remaining amount (if lease is terminated before

period) Gradual transfer

Ijarah Muntahia Bittamleek

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ESSENTIALS OF IJARAH

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IJARAH (LEASING)

The corpus of leased commodity remains in the ownership of the lessor and only its usufruct is transferred to the lessee.

Any thing which cannot be used without consuming the same cannot be leased out like money, edibles, fuel, etc.

Only such assets which are owned by the lessor can be leased out except that a sub-lease is effected by the lessee with the express permission of the lessor.

Until such time that assets to be leased are delivered to the lessee, lease rentals do not become due and payable

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IJARAH (LEASING)

During the entire term of the lease, the lessor must retain title to the assets, and bear all risks and rewards pertaining to ownership.

If any damage or loss is caused to the leased assets due to the fault or negligence of the lessee, the consequences thereof shall be borne by the lessee.

The consequences arising from non-customary use of the asset without mutual agreement will also be borne by the lessee.

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IJARAH (LEASING)

The lessee is also responsible for all risks and consequences in relation to third party liability, arising from or incidental to operation or use of the leased assets.

The insurance of the leased asset should be in the name of lessor and the cost of such insurance borne by him.

A lease can be terminated before expiry of the term of the lease but only with the mutual consent of the parties.

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IJARAH (LEASING)

Either party can make a unilateral promise to buy/sell the assets upon expiry of the term of lease, or earlier at a price and at such terms and conditions as are agreed, provided that the lease agreement shall not be conditional upon such sale.

Alternatively, the lessor may make a promise to gift the asset to the lessee upon termination of the lease, provided the lessee has fulfilled all his obligations.

However, there shall not be any stipulation in the lease agreement purporting to transfer of ownership of the leased assets at a future date.

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IJARAH (LEASING)

The amount of rental must be agreed in advance in an unambiguous manner either for the full term of the lease or for a specific period in absolute terms.

Assignment of only the lease rentals is not permissible except at par value.

Contract of lease will be considered terminated if the leased asset ceases to give the service for which it was rented. However, if the leased asset is damaged during the period of the contract but is capable of being repaired, the contract will remain valid.

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IJARAH (LEASING)

A penalty can be agreed ab initio in the lease agreement for delay in payment of rental by the lessee. In that case, lessee shall be liable to pay penalty calculated at the agreed rate in percent per day/annum. However, that penalty shall be used for the purposes of charity.

The banks can also approach competent courts for award of damages, at discretion of the courts, which shall be determined on the basis of direct and indirect costs incurred, other than opportunity cost.

Also, security or collateral can be sold by the bank (purchaser) without intervention of the court.

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AAOIFI SHARIAH STANDARD

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Ijarah and Ijarah Muntahia Bittamleek

Scope.This standard is applicable to operating leases of properties or to Ijarah Muntahia Bittamleek. Whether the institution is the lessor or the lessee. This standard is not applicable to the employment persons (labor contract).

Promise to lease (an asset).It is permissible for the institution to require the lease promisor (customer) to pay a sum of money to the institution to guarantee the customer’s commitment to accepting a lease on the asset and the subsequent obligations, provided no amount is to be deducted from this sum except in proportion to the actual damage suffered by the institution.

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Acquisition of the asset to be leased.For the validity of an Ijarah contract concerning a specified asset, the lease contract should be preceded by acquisition of either the asset to be leased or the usufruct of that asset.

(a) If the asset or the usufruct thereof is owned by the institution, which should in principle be the case, an Ijarah contract may be executed as soon as agreement is reached by the two parties.

(b) however, if the asset is to be acquired from the customer, or from a third party, the Ijarah contract shall not be executed unless and until the institution has acquired that asset.

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Concluding an Ijarah contract. The lease contract is a binding contract which neither may terminate

or alter with out the other’s consent.

The duration of an Ijarah contract must be specified in the contract. The period of Ijarah should commence on the date of execution of the contract, unless the two parties agree on a specified future commencement date, resulting in a future Ijarah, that is, an Ijarah contract to be executed at a future date.

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Subject Matter of Ijarah The leased asset must be capable of being used while preserving

the asset, and the benefit from an Ijarah must be lawful in Sharia.

The lessor may not stipulate that the lessee will undertake the major maintenance of the asset that is required to keep it in the condition necessary to provide the contractual benefits under the lease. The lessor may delegate to the lessee the task of carrying out such maintenance at the lessor’s cost. The lessee should carry out operating or periodical (ordinary) maintenance.

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Rules governing lease rentals. In case the rentals is subject to changes (floating

rentals), it is necessary that the amount of the rentals of the first period of the Ijarah contract be specified. It is then permissible that the rentals for subsequent periods be determined according to a certain benchmark.

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Guarantees and treatment of Ijarah receivables. Permissible security, of all kinds, may be taken to

secure the rental payments or as security against misuse or negligence on the part of lessee.

It may be provided in the contract of Ijarah or Ijarah Muntahia Bittamleek that a lessee who delays payment for no good reason undertakes to donate a certain amount or percentage of the rentals due in case of late payment. Such donation should be paid to charitable causes under the co-ordination of the institution's Sharia supervisory board.

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Termination of the Ijarah Contract. The two parties may terminate the Ijarah contract

before it begins to run. It is permissible to terminate the lease contract by

mutual consent but it is not permissible for one party to terminate it except in case of force majeure or there is a defect in the leased asset that materially impairs its use. Termination is also possible when one party secures an option to terminate the contract in which case the party who holds the option may exercise it during the specified period.

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Transfer of the ownership in the leased property in Ijarah Muntahia Bittamleek.

In Ijarah Muntahia Bittamleek, the method of transferring the title in the leased asset to the lessee must be evidenced in a document separate from the Ijarah contract document, using one of the following methods. By means of a promise to sell for a token or other

consideration, or by accelerating the payment of the remaining amount of rental, or by paying the market value of the leased property.

A promise to give it as gift (for no consideration). A promise to give it as a gift, contingent upon the

payment of the remaining installments.

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MECHANISM

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Leasing (Ijara Wa Iqtina)

Another popular instrument – 15% of the transactions

Right available to lessee to purchase

Asset ownership risk with owner; operational risks with lessee

Features close to a financial lease

Used for machinery, equipment, property, vehicles, aircraft etc.

Ownership usually transferred at the end

Financier(Lessor)Financier(Lessor)

Entrepreneur(Lessee)

Entrepreneur(Lessee)VendorVendor

Transfer of assetTransfer of assetBeneficial useBeneficial use

of assetof asset

Payment ofPayment ofpurchase pricepurchase price

Lease rentalsLease rentals

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Ijarah Muntahia BittamleekIjarah Muntahia Bittamleek

The customer approaches the Bank with the request for financing

The Bank purchases the item required for leasing and receives title of ownership from the vendor

The Bank makes payment to the vendor

The customer approaches the Bank with the request for financing

The Bank purchases the item required for leasing and receives title of ownership from the vendor

The Bank makes payment to the vendor

GENERAL MECHANICS

CUSTOMERISLAMIC

BANK

VENDOR

. .Agreement

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Ijarah Muntahia BittamleekIjarah Muntahia Bittamleek

The Bank leases the asset to the customer

The customer makes periodic payments as per the contract

The asset title transfers to the customer based on the method disclosed in the agreement

The Bank leases the asset to the customer

The customer makes periodic payments as per the contract

The asset title transfers to the customer based on the method disclosed in the agreement

GENERAL MECHANICS

CUSTOMERISLAMIC

BANK

AgreementVENDOR

. .

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USAGE OF IJARAH

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IJARAH (LEASING)

Ijarah (Operating Lease) Examples:HousesRent-A-CarAgricultural DurablesAircrafts, etc.

IssuesAsset Price RiskRepair and MaintenanceRunning Expenses (depending upon contract)Credit Risk (Default in rental payment)

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IJARAH (LEASING)

Ijarah Muntahia Bittamleek Examples:

Vehicles Ijarah Financing

Plant and Machinery

Consumer Durables

House Financing

Project Finance, etc.

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RISKS AND ISSUES

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Risks and Practical Issues

Proper documentation Sequence of Documentation in Sale and

lease Back. Time of Transferring asset in Sale and Lease

back Islamic Lease covers the conditions of

Finance Lease as described in IAS 17. Accounting & Tax Depreciation Issues.

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RisksRisks

Credit Risk Rate of Return Risk Customer may decline to enter into Ijarah. Damage to Asset Overdue Rentals Non-Compliance/Violation of contract. Early Termination Asset Price Risk

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Risks and Practical Issues

How to treat insurance cost paid by the Lessor?

Treatment of Security deposits received from customers.

Treatment of Advance rentals. Accounting rule/policy regarding repairs

of Leased assets. Securtization of Asset or Receivables?

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Leasing/Ijarah Contract

Conventional Leasing Car Ijarah

There are two types of contracts, Financial lease and loan for car financing. Both these contracts contain conditions that are contravenes with the Islamic Sharia'h. Financing lease contains conditions of hire purchase, which is not permissible by Sharia'h. Car financing or loan agreement contains conditions of interest. Interest is considered Riba by Sharia'h

The Ijarah contract does not contain any condition that makes the contract void under Sharia'h perspective.

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Rights & Liabilities of Lessor and Lessee


In Conventional Leasing Products, the Customer is responsible for all kinds of losses or damages to the Leased asset, irrespective of the circumstances.

If the insurance company does not compensate the entire outstanding amount in case of total loss, the customer is liable to pay the balance.

All risks pertaining to ownership are borne by Lessor.Customer only bears usage-related risks

Lessor bears the risk of Insurance claim settlement.

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Rentals recovery in case of theft and loss


If the Leased Asset is stolen or completely destroyed, the conventional leasing company or Bank would continue charging the lease rent till the settlement of the Insurance claim

Under the Islamic Ijarah, rent is consideration for usage of the leased asset, and if the asset has been stolen, destroyed or temporarily out of order and not in use of Customer, the concept of rental becomes void. In such situations rental is not charged from the lessee.

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Penalty for late payment


In most contemporary financial leases, an extra monetary amount is charged if rent is not paid on time. This extra amount is the considered Riba and is Haram.

This amount is taken by the leasing institution into their income.

Under Ijarah, the Lessee may be asked to undertake that if he fails to pay rent on its due date, he will pay a certain amount to a charity Fund, which will be administered through the Islamic Bank.

For this purpose the bank maintains a charity fund where such amounts may be credited and disbursed for charitable purposes.

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Insurance premium


Insurance is independent of the lease contract. The insurance expense of the asset is directly borne by the lessee

Takaful / Insurance should be at the expense of the Lessor and not at the expense of the lessee. The Lessor may increase the lease rent to recover any costs incurred by him in connection with the asset. However, as a matter of principal, the cost should be paid for by the Lessor.

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Registration Charges


Lessee is responsible for the Registration of Leased Vehicle.

The Leased Asset(vehicle) is registered in the name of the Bank and registration charges are paid by the Bank (Lessor).

The Lessor may increase the lease rent to recover any costs incurred by him in connection with the asset

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Purchase of asset


Under conventional leasing contracts, the vehicle is automatically transferred in the name of the customer upon completion of the lease period, whether or not he wants to purchase it.

There is not such clause in the Ijarah Agreement that Leased Asset will automatically transfer to Lessee.

Separate sale agreement is required to execute sale transaction at the end of lease term.

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Commencement of Rentals


In case of Booking of Leased Asset, recovery of Lease installment commence after the payment of cost of Asset to manufacturer/dealer.

In case of Car Ijarah, the recovery of rentals is associated with delivery of Leased Asset.

Rental recovery should not be commenced before the delivery of Asset.

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Signing of Lease Contract


Lease Agreement can be signed by the Lessee and Lessee any time even if the Leased Asset is not owned by the Customer.

In case of Ijarah, the Ijarah Agreement can not be signed by the Lessor and Lessee unless:

Asset has come in to existenceAssets is in the ownership of the LessorLessor has taken possession of the Asset

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Termination before delivery


The customer will suffer loss of interest paid during the booking period because installment commence immediately after payment of cost of asset to the Manufacturer/Dealer.

The loss of customer is only limited to actual loss, if any, suffered by the Lessor on sale of asset in the open market.

Since the customer has not paid any rental during the booking period, no other cash loss is expected under Ijarah.

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DOCUMENTATION OF IJARAH

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IJARAH AGREEMENT

Ijarah Agreement is the basic document

which contains all terms and conditions

pertinent of Ijarah of particular Asset(s).

Ijarah Agreement shall be signed after

the Lessor has taken the possession the

Asset and not earlier.

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ADDENDUMS TO IJARAH AGREEMENT

Description of the Ijarah

Asset

Schedule of of Ijarah Rentals

Receipt of Asset

Demand Promissory Note

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DESCRIPTION OF IJARAH ASSET

This document contains the detailed description about the Leased Asset agreed between the parties e.g Name, Make ,Model,Engine No., Chassis No., Registration No. etc etc.

This documents shall be signed signed after Delivery of asset to the Lessee and not earlier.

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SCHEDULE OF IJARAH RENTALS

This schedule contains a table which shows:

Amount of rental (Monthly/Quarterly/Half Yearly)

Date of Payment of each rental

This schedule will also contain the date on which first rental is due.

This documents shall be signed signed after Delivery of asset to the Lessee.

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RECEIPT OF ASSETS

This document confirms that customer has taken the possession of Leased Asset as described in the earlier document “Description of Ijarah Asset”.

This document is only signed by the Lessee on receipt of Asset, as an acknowledgement of receipt of described asset under Ijarah Contact.

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PROMISSORY NOTE

After signing of Ijarah Agreement, the amount of rentals become Debt (Dyan) to the Lessee.

Promissory Note is Lessee’s acknowledgement to Debt amount and its promise to pay.

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UNDERTAKING TO PURCHASE LEASED ASSET

This documents contains undertaking from the Lessee that he/it will purchase the Leased asset on the purchase Price corresponding to the Purchase Date.

This document contains a schedule which shows Purchase Price(s) during the Ijarah term on which the Lessee can purchase the asset by making lump sum payment.

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OTHER DOCUMENTS

Undertaking for Personal use of Ijarah Asset

Trust Receipt

Authorization to Take possession of Leased Asset

Sale Deed

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Ijarah delivers legitimacy from the Qura’an and the Sunnah.

On the level of Qur’an, Allah says : “ said one of them ‘o my father engage him on wages” (Surah al-Qasas verse 26)

The saying of the Prophet Hazrat Muhammad (Sallallau Alihi Wsallam) that “whoever hired a worker must inform of his wages” (Ibn-e-Majah, Sanan Ibn-e-Majah 2/817 )

“Give a worker his wages before his sweet is dried”(Ibn-e-Majah, Sanan Ibn-e-Majah 2/817 )

Shari’ah legitimacy Ijara-tul-Ashkhas

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According to Shari’ah, Ijarat-ul-ashkhaas which is dealt with hiring the services/ expertise of a person or a party which provides his/her/its expertise.

It depends upon the nature of the transaction that how many parties are involved in Ijarat-ul-Ashkhaas. For example, there may be three parties, one is the services provider (the principal lessor), second is Bank (the principal lessee, which will avail these services on spot/prompt or deferred payment basis) from the principal lessor and the third is actual services seeker (the sub lessee)

According to the aforesaid Shari’ah principle, Bank can devise consumer as well as corporate products for its clients from the services providers on either prompt or deferred payment basis. If the client fails to make payment on due dates, according to pre-agreed schedule, then Bank will be entitled to only receive charity from the client for the defaulted period but this charity will not be taken into Bank income rather Bank will have to pay this charity amount to some approved charitable institutions.

Ijara-tul-Ashkhas

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“Islamic banking looks the same as conventional banking”

A halal meat and haram meat may look exactly the same but one is permissible while the other is not

“A fixed rate of return is not permitted under Islamic Shariah”

Fixed return does not make a transaction halal or haram

For example:

• Profit on trading

• Rent on property

Common Misconceptions

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“Murabaha and Ijara are major modes being practiced”

• Modaraba is major mode

“Only Documents certified by Shariah Scholars are necessary for Shariah compliance”

• Execution of documents

Common Misconceptions

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ISLAMIC BANKING

SUGGESTED STRATEGY Take a Clear view Have the right attitude Make an active effort to learn Have a commitment to implement the change Learning never ends.

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THANK YOU for the Patience

Ijara by Hamad Rasool

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Transcript of Ijara by Hamad Rasool