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The Negotiability of Debt in Islamic Finance - An Analytical and Critical Study (Paperback)
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The Negotiability of Debt in Islamic Finance - An Analytical and Critical Study (Paperback)
Series: Brill Research Perspectives in International Law / Brill Research Perspectives in International Banking and Securities Law
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The challenges posed by the non-liquidity and non-diversity of the
Islamic debts market make the market an inefficient tool on
contributing to Muslim economic growth. Islamic scholars and
experts created sukuk as an Islamic debt instrument to avoid riba
(usury), but the sukuk market (especially in the Gulf) still
struggles with the prohibition of the trade of debt due to the
prohibition of the two Fiqh Academies. Trading and securitizing
debts should be permitted in Islamic law, with one condition, that
the debt should be considered low risk. This new rule, the
permissibility of trading debts, is supported by three Islamic
legal bases, istishab, qiyas, and maslaha, which are recognized by
all four Islamic schools of legal thought. Furthermore, permitting
the trading of debts is more consistent with the principles and
theories of Islamic law than is forbidding it. It is consistent
with the obligations theory that debt is a personal right. It is
consistent with the mal (property) theory that debt may be sold
according to the three Islamic schools of legal thought, all of
which consider debt as property. It is consistent with other modern
Islamic financial transactions that are permitted by the two Fiqh
Academies, such as tawarruq and murabaha.
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