The application of constructive possession (qabd hukmi) in Islamic financial contracts

• Main Author: Abdul Wafi, Samsurrijal
• Format: Thesis
• Language: English; English
• Published: 2022
• Subjects: HG Finance
• Online Access: https://etd.uum.edu.my/10239/1/s827993_01.pdf; https://etd.uum.edu.my/10239/2/s827993_02.pdf; https://etd.uum.edu.my/10239/

Qabd (taking possession) is a fundamental element to acquire the subject matter in sale and purchase contracts as well the other financial contracts. Qabd represents an integral part in any exchange-based contract (‘uqud al-mu’awadhah) and charity-based contract (‘uqud al-tabarru’at) in which a failure to accomplish this important part will hinder the completion of a contract due to the invalid possession of respective subject matter. Given the nature that contemporary transactions are mostly applicable to constructive possession (qabd hukmi) and not widely applicable to the real possession (qabd haqiqi). However, the actual practice of constructive possession encounters several cruxes of issues that threaten its validity such as the impediment on the right of disposal (haq altasarruf), partial of takhliah and tamkin (relinquishment and full access) and unparallel concept between physical and constructive possession that hit the nature of Islamic finance and banking. The research carries objectives to examine the meaning of qabd hukmi from the view of fiqh, its application in the contemporary Islamic financing products and the issues arise upon the implementation of qabd hukmi. This research was assisted by in depth examination on classical fiqh literatures as its basis to extract the intended meaning of qabd hukmi. A qualitative approach was used as the research method and the data collected is gained through the interview. The data was classified and arranged to the respective themes through the coding methods. Ultimately, the research provided suggestions and recommendation that have been seen as a mechanism from the researcher’s perspective to resolve the dispute in the case of constructive possession and encourage the stakeholders of the Islamic finance and banking to evaluate, mitigate and improve the related matters.