Legal Literacy - This article discusses the dynamics and importance of sharia contracts in the context of business and banking in Indonesia, which is growing rapidly along with the development of the Islamic economy. Sharia contracts play an important role in ensuring that business transactions are carried out in accordance with sharia principles, which include honesty, fairness, and compliance with the prohibition of riba, gharar, and maisir. This article also outlines the definition, theory, principles, subjects, and objects of sharia contracts, as well as the legal requirements and consequences if the contract is canceled or terminated. This information is important for business actors who want to understand how sharia contracts are applied in practice and legal regulations in Indonesia, providing a comprehensive guide to the requirements and legal implications of sharia contracts.

Introduction

Currently, there are many businesses in Indonesia that show a rapidly developing graph, as is the case with activities in sharia business. Of course, in ongoing sharia business activities, there are contracts that occur. The most rapid development of the Islamic economy in Indonesia is in the form of banking and non-bank financial institutions. With the increasing diversity of sharia businesses, actors must carry out activities based on sharia which is based on the relationship between banks and customers within the scope of banking. The contract that occurs in sharia business is a sharia contract. In this condition, the sharia contract regulates a written agreement or engagement based on sharia principles with the function as evidence for the parties.

The aim of the sharia contract is as a guide for humans when carrying out socio-economic transactions, both modern and conventional, in order to achieve divine pleasure. In practice, sharia contracts are prohibited from containing riba, gharar, and maisir. As for what is permitted, based on sharia principles, are the principle of monotheism, the principle of Amanah, the principle of fatanah, the principle of siddiq, the principle of Ridha, the principle of tabliq, the principle of ikhtiar, the principle of mas'ulun, the principle of justice, the principle of zakat, and the principle of ihsan.

Definition and Terms of Sharia Contract

In Arabic, a contract is an akad, which means a bond or conclusion. A contract is a certainty from the results of a joint agreement between the two parties verbally, by gesture, in writing, with binding legal implications in its implementation. The terms contract and agreement are not distinguished in Islamic law because they are identical to the term akad, so that akad is interpreted as the existence of a valid ijab qabul according to sharia law and allows legal consequences to arise. In addition, the word sharia etymologically means "the road to the watering place" or "the road that must be followed". When conditioned in a sharia contract, the word sharia has the meaning of all human amaliah, Aqidah, and moral activities regulated in the form of orders and prohibitions in accordance with dail qath'i.

It is concluded that a sharia contract is the process of carrying out a transaction between one party and another which is bound by law with an offer and acceptance in accordance with sharia law. It can also be said that all legal rules in the field of muamalah that regulate actors in economic relations are based on consensus based on Islamic law and can give rise to legal consequences.

Juridical Theory of Sharia Contract

The juridical theory of sharia contracts is found in The Civil Code Article 1313 concerning agreement approval. When in the banking scope, it is in Law Number 21 of 2008 concerning Sharia Banking. Based on Islamic law, sharia contracts use akad. The definition of akad can be seen in Articles 1 to 5 of Law Number 19 of 2008 concerning State Sharia Securities that agreements must not conflict with sharia and comply with statutory regulations. It also needs to be underlined that in carrying out a contract there must be an element of "mutual consent" because consent cannot be excluded. So, there must be approval between the two parties.

Principles of Sharia Contract

The principles used by sharia contracts are

  1. The principle of ibahah with the famous argument that "basically everything is permissible as long as there is no argument that prohibits it".
  2. The principle of freedom to contract, everyone is free to make agreements with anyone and anything as long as it is based on Islamic law.
  3. The principle of consensualism, namely that an agreement is created simply by agreement between the two parties.
  4. The principle that a promise is binding, namely that a promise that has been made is binding and must be fulfilled.
  5. The principle of balance, namely that Islamic agreements apply balance in bearing risk.
  6. The principle of benefit, namely that agreements or contracts made must not be detrimental to the parties.
  7. The principle of trust is the existence of good faith in transactions.
  8. The principle of justice is like being allowed to negotiate in a contract.

In addition to the above, other sources state that there are principles used in sharia contracts, including the Principle of Tawhid, the principle of permissibility, the principle of justice, the principle of equality or equivalence, the principle of honesty and truth, the principle of being written, the principle of good faith or trust, the principle of benefit, the principle of willingness or consensualism, the principle of freedom of contract, and the principle of legal certainty.

Subjects and Objects of Sharia Contracts

Legal subjects are classified into two, namely humans and legal entities. Humans are said to be legal subjects because they have subjective rights, but not all humans can be said to be legal subjects. The groups in question are minors, people under guardianship, and married women. Apart from humans, legal entities are also legal subjects. So, it can happen to sue and be sued depending on the type of legal entity, such as Limited Liability Companies, State Companies, Foundations, Government Bodies, and so on. Thus, legal subjects of humans and legal entities have a dominant position in the occurrence of sharia contracts.

Meanwhile, the object of this sharia contract can be in the form of goods, benefits of goods, services, or anything that does not conflict with shara' law. There are three kinds of object forms, the first is that the object of the contract can be handed over. That is, the object that supports the existence of the contract runs or not. In other words, the object in the form of goods must be clear and can be handed over when a sharia contract occurs. It is not allowed that the goods are still owned by other people. The goods must be in accordance with the wishes and interests of both the substance, nature and benefits for the opposing party.

The second type of object of a sharia contract is a specific contract object. all types of transaction objects or Islamic business contracts that are conditionally specific are seen in specific goods, specific services, specific jobs, and benefits from specific goods. The meaning of certain objects is that it has been clearly confirmed and not in the shadow of the offering party. A specific job here is the determination of working hours as the basis for determining wages and occurring in a worker contract between the worker and the employer. Meanwhile, the meaning of the object of the contract for the benefits of certain and determined objects is that the benefits of an object can be used as the basis for determining the validity of contract law in the business contract practices carried out by the parties. However, not all the benefits of an object can be specific or determined

The third form of contract object is the object of the contract being transacted. The meaning is that the object used as the subject is very clear and both can see, hold and feel on the side. In addition, the goods or objects are truly owned by the party making the contract, namely the supplier. If the recipient knows and is very sure that the goods used by the commercial contract subject are actually owned by the supplier who is the contract partner. Because Ownership is an absolute requirement to uphold the agreement between themselves Parties. Because it is impossible to conclude a business contract if someone else owns the goods other than the goods are authorized by another person acting as a commercial contract subject.

Terms of Validity of Sharia Contracts

Based on civil law, the conditions for the validity of an agreement are regulated in Article 1320 of the Civil Code which states:

  1. There is the capacity to make an engagement.

Capacity based on civil law and Islamic law has similarities, namely that capacity is the same as being reasonable. So, there are types of capacity that are perfect and imperfect. Article 1320 paragraph (1) of the Civil Code is the same as the principles of Islamic law. However, in the Civil Code the size of an adult is 21 years old or married. Meanwhile, in Islamic law, the measure lies in puberty. Men have experienced ihtilam (dreaming) and women have menstruated. Puberty in Islamic terms is 15 years old.

  1. There is permission as a voluntary agreement from the parties.

Related to agreements that are declared valid or invalid, both in the Civil Code and Islamic law, it is the same, namely that an agreement occurs without coercion or deception. However, in the Civil Code in practice, agreements are made orally or in writing as evidence. Meanwhile, in Islamic law, the agreement is identically carried out with the words ijab and qabul.

  1. Regarding a certain thing or object.

The object of the contract, both the Civil Code and Islamic law, must concern something as a legal object. However, in the Civil Code, the object of the agreement is the achievement or subject matter of the agreement which must be permitted, must be determined, possible, and can be valued in money. Meanwhile, in Islamic law, the object of the contract must exist when the contract is carried out, be clear, can be handed over, and justified by sharia.

  1. There is a justified reason.

Both in the Civil Code and Islamic law, there must be good faith from the parties and not be caused by something prohibited such as coercion and deception. Meanwhile, the difference between the Civil Code and Islamic law regarding the halal cause is that the reason for the sale and purchase agreement is that the seller is not obliged to hand over the goods after delivery by the buyer of money as understood by Western law but the transfer of ownership with appreciation based on sharia law.

Juridical Consequences of Sharia Contracts

The consequences of the nullification of the law that nullifies the existence of the contract are always considered retrospectively after the termination of the contract. Understanding the contract should be in relation to non-compliance with the terms of the contract, namely the failure to fulfill subjective and objective elements and incapacity. A contract is said to have ended when what has become the purpose of the contract has been achieved, especially after each party has exercised their rights and obligations. This is what is called the complete termination of the contract, namely after the purpose of an engagement has been achieved.

The contract can be confirmed to end when the term of the contract has been completed. When it is completed, the legal relationship between the parties is severed. However, terminating an agreement in a sharia contract depends on the type of contract used. For example, a sale and purchase contract will be said to end if the object of exchange has been handed over. A contract in the perspective of Islamic law is also referred to as an agreement based on sharia provisions, while a contract in civil law is known as a conventional agreement whose implementation is based on civil law.

The BW does not regulate in detail what the end of the contract is, but it is regulated in Chapter IV Book II that the Nullification of the engagement. When the provisions regarding termination of contract are also provisions regarding termination of transfer contract because transfer according to part IV BW is a general transfer, both contractual and against the law.

According to article 1381 of the Civil Code, the contract is extinguished due to payment, offer of cash payment followed by storage or deposit, renewal of debt, meeting of debt or compensation, mixing of debt, release of debt, destruction of the indebted goods, cancellation or cancellation, the validity of the cancellation clause and lapse of time. In conclusion, the termination of the agreement (akad) in the perspective of Islamic law can be caused by the completion of its implementation due to the expiration of the contract period, then due to actions to terminate the agreement that has been created before it is implemented or before its implementation is completed, which is called termination. There are four types of termination: termination of the contract due to iqalah, termination related to upfront urbun payments, termination of the contract because it is impossible to implement, termination of the contract because one of the parties refuses to implement it.

References

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