المقاصة بين الديون في الفقه الإسلامي وتطبيقاتها المعاصرة في البنوك الإسلامية "ماي بنك الإسلامي" Maybank و" سي آي أم بي الإسلامي" CIMB Islamic نموذجا

Abstract

In modern times, the set-off is no longer an ordinary transaction performed between two parties of creditor and debtor. Rather it has turned to be a widespread technical and machinery process involving by multiple parties at a global level. Similar to other Islamic banks also utilise the set-off for settling the debts arising from their transactions with other banks as well as their customers. Therefore, an explanation of the various modes and novel applications of set-off has become a necessary to outline its juristic formulation (al-Takyif al-Fiqhi) and to explicate its legal grounding (al-Ta’lil al-Shari’). The major findings of this study include that the set-offs, which are carried out between banks under the supervision of central bank or via the sponsoring organisation of credit cards, are legal though they are not in line with a sense of jurisdiction because of its failure in fulfill one of the requirements i.e. “convergence of obligations” (taliqi al-dhimmatayn). In addition, the general agreements conducted between the bank and its clients on the set-off in debts which may arise in the future are also valid as long as the conditions are applicable to them. However, the set-off of interest-based lending and crediting is not allowed because of its association with usury. Regarding the recommended alternatives of set-offs, there are invalid ones such as the compensation and validated ones by the Shari’ah committees and juristic bodies. The researcher has adopted evaluative and comparative analytical methods. The former is for explicating the novel models and applications of set-offs and their mechanisms applied by the banks and the latter is for expounding the differences between these models and applications, thus, find out their legal rulings.