Contractual relationship in takaful fund and its legal entity

Abstract

This study sheds light on one of the most important issues in Islamic economics and widely spread in the Islamic world. That is the issue of contractual relations in takaful and the legal status of takaful fund. The principles and general features of takaful are viewed in the second chapter of this study. Then, the theory of legal personality is discussed as it is one of the theories that was recognized by Islamic jurisprudence and was, also, applied in many cases. Further, came the analysis and critique of contractual relations among the parties of takaful, namely; takaful fund, takaful participants and takaful operator. The obstacles and problems found in these contractual relations are presented with a humble effort to overcome some of them. Finally, the legal status of takaful fund is discussed. The discussion resulted in the independency of the fund and in possessing a legal personality due to the strong evidence provided by supporters of this opinion. In this study, two methodologies are applied: descriptive and analytical. The descriptive method is used in reviewing the general principles of takaful and describing the theory of legal personality, whereas the analytical method is applied all through the study. The study concludes a number of main results, to mention some of them; the existence of several cases of legal personality which was accepted in Shari`ah, takaful is considered as a tabarru` contract as some contractual relations do not comply to the rules of Shari`ah and the support and acceptance of the independency of takaful fund in addition to the position of an independent legal personality. The study recommends more in-depth research on the different aspects of takaful due to the limited number of resources in this field of study. Also, it calls for conducting more research on the nature of tabarru` to drive away any doubts arising now and then of the actual nature of tabarru`.