Qabdlu Haqiqi and Qabdlu Fiqh in the Hukmi Modern Deals

Sale and purchase contract is a contract which resulted in the transfer of ownership and authority over goods/assets from a seller to a buyer. In the classical Fiqh literature, one of the terms of the sale required there is al-qabdlu (asset acceptance). Without al-qabdlu, then the ulama Syafi'iyah circles agreed that selling is not valid.

 But over time, with the object of material goods sold vary in terms of the intensity and quantity, then the scholars differed with the status of ownership of goods before or after qabdlu.

According to the Maliki madhhab, the transfer of property rights occurs if the buyer already has the authority in utilizing the goods/assets even though there hasn't been an element of qabdlu. Still, according to the Malikiyyah, goods or assets here are not limited to include ' of aqar (goods not moving, such as paddy fields, land, vineyards, etc.), or manqul (chattels). However, the Hanbali madhhab requires absolutely that the occurrence of a transfer of ownership begins when buyers already qabdlu (accepting assets) before he exploits it. This difference brings swept up against the question of the furu ' later. Among his own Syafi'iyah al-qabdlu became one of the terms is absolutely legitimate.

What the heck qabdlu it?

From the terminology of the language, qabdlu means holding or grasping. Synonym of qabdlu in terms of Fiqh is naqd, munajazah, hiyazah, yadd, yadd bi yadd, haq and haq, qada ' wa iqtida '. But according to terms, as presented by Ibn al-Jawzi in al-Qawanînu al-Fiqhiyyah: 328, al-qabdlu is:

ة الشيء والتمكن منه سواء كان التمكن باليد، أو بعدم المانع من الاستيلاء عليه، وهو ما يسمى بالتخلية أو القبض الحكمي

It means: "ownership of assets or rights of use of an asset, which is received with the direct handover of the hand, or in the absence of a barrier to control it."

In other words, that al-qabdlu was a mastery over assets by buyers who caused him to legal action against the assets, such as tasharruf, sell, and others, as well as receive the benefits or bear the risks resulting from ownership.

As the development of the times and technological advances, the practice of buying and selling were also experiencing influence. Reconstruction practice of buying and selling can only be done with the road met directly between buyer and seller, or through the intermediary of the seller or the buyer's Deputy Representative, but this time the media has been developing and selling through online media, or other similar medium, such as the Indonesia stock exchange, in which the object of sale and purchase.

If at the beginning of the treatise it conveys the prophetic, the practice of buying and selling can be done directly with the media money and goods, or through the practice of barter goods with the object in the form of concrete goods (in 797). But in the current era, and selling done through objects in the form of securities, documents, notes, checks, etc.

Notice any changes to objects of different goods sold with objects early treatise, then later the fuqaha ' group the sale into two, namely bai ' and ' bai hukmi haqiqi. Acceptance of the authority of goods is also carried out in two ways i.e. essential qabdlu and qabdlu hukmi. In Majma ' al-Fiqh al-Islam Number 53 with others opinion Wahbah Al-Sheikh Zuhaili, submitted that:

القبض في بيع العملات إما حقيقي وإما حكمي:

أما القبض الحقيقي فيتم بنحو حسي ملموس بالأخذ باليد ، أو الكيل ، أو الوزن في الطعام ، أو النقل والتحويل إلى حوزة القابضوأما 

القبض الحكمي فهو كل ما تتحقق به الحيازة والتمكن من التصرف ، بحسب العرف السائد ، من غير تناول باليد أو قبض حسي

It means: "Al-Qabdlu in trading securities, there are times when haqiqi (legal ownership), and there are times when hukmi (beneficial ownership). Al-qabdlu al-haqiqi is completing the transfer of ownership of the goods are traditionally through the touch, received by hand, measured, weighed, a food, move or lead to mastery of the buyer. While al-qabdlu al-hukmi is anything stating the occurrence of a transfer of property rights or rights to manage assets according to ' urf in force without the involvement of elements of the hand or the traditional acceptance. "

(Read: Ijtihad for Islamic banking in the cases Bai'u and Qabdlu Hukmi Hukmi)

In modern ta'rif according to among economists, qabdlu in the term as haqiqi full ownership/valid and recognized by the laws that apply, along with moving the name officially in the top of the document property. While qabdlu hukmi, often they will term it as beneficial ownership. The status of assets through qabdlu hukmi is almost similar to qabdlu haqiqi, however, there are some specific differences there.

For example for qabdlu haqiqi, was selling a motor vehicle. If a buyer has paid to the dealer an amount of money that is required, then he is entitled to get the motorcycle, with a valid power of attorney over ownership recognized by the State.

As for the example of qabdlu, a customer is hukmi PLN (the State electrical Company), who volunteered the installation of electricity in his home. All purchases include the fulfillment of requirements already metered electric tools must be installed. The status of ownership of electricity also on behalf of the customer. However, in some use rights, it turns out he is limited by the PLN, that if he could not afford to pay the electricity, PLN could disconnect the electricity and simultaneously bring the device. The true ownership of the device status is already in the name of himself in the document, but the practice still belongs to PLN. this later by the fuqaha ' are named with the term qabdlu hukmi or by economists have termed as beneficial ownership, i.e. on the basis of utilization of kepemilakan.

Because the status qabdluhukmi is beneficial ownership, the basic benefit, then it is usually in the banking practice, the term is used for transactions with practices that resemble a murabaha qabdlu haqiqi.

Does this include hukmi qabdlu that should be implemented for transactions nowadays?

In Majma ' Fiqh Islami, decision number 53 (4/6), mentioned that for some cases transactions, in order to keep the benefit and avoid losses, qabdlu hukmi as part the mandatory to implement. As for guidelines implementation is ' urf (Customs) that applies to the company/institution. For example, on top of already submitted for the case of PLN. How do with banking?

In the case of banking, amaliyah practice selling murabaha is applicable when there is a client need to do lending to banks. Because Akkadian mudayyanah can reduce capital, and Islamic banks do not have a compelling interest to the customer, then the contract was undertaken through murabaha sale contract with tawarruq, bai'u al-' uhdah, or bai ' al-syarth bi as REPO transactions as cases that have been explained earlier. The customer's ownership of an item, awarded in the sales documents and entrusted to the bank via the document anyway. Furthermore, the customer receives the proceeds via a transaction on top of the document, in the form of credit goods he had installment as the agreement that he did with the banks and banks with a Dealer who is believed by the Bank.

And Allah knows best.