المقاصد وضوابطها في الفقه الإسلامي والقانون المصرفي النيجيري : دراسة تحليلية

Abstract

This study examines muqassah (clearing) in Islamic law and Nigerian banking law with special reference to the practice of modern banks and other financial institutions in their regular clearance of cheques. The practice of settlement or clearance of cheques is not unique to modern banks and financial institutions. Islamic law has a well-developed concept, which provides for more specific principles to regulate such transactions. Despite the significance of this concept, modern legislations have not fully catered for such cheque clearance involving unlawful property. Though Islamic law provides specific provisions on this issue, the Muslim jurists disagree on the legality of muqassah in some kind of property such the subject matter of a forward contract (salam) and usurped property (ghasb). Thus, this study provides a comparative analysis between the concept and practice of muqassah in Islamic law and relevant banking laws in Nigeria with a view to establishing the real differences between them. The study finds that there are both areas of convergence and divergence between muqassah in Islamic law and cheque clearance under the Nigerian banking law. A major gap found under the Nigeria legal framework regulating cheque clearance is the lack of clear distinction between properties that are subject to muqassah. With the recently introduced Islamic banking industry in Nigeria, this study provides a good framework for the Islamic banks and financial institutions that might prefer the Sharī'ah concept of muqassah in their cheque clearance either between them and their customers or inter-bank clearance.