Pengikatan Jaminan Kebendaan dalam Kontrak Pembiayaan Muḍārabah sebagai Upaya Penyelesaian Sengketa Debitur Wanprestasi (Analisis Putusan Mahkamah Agung Nomor 272/K/AG/2015 tentang Pembiayaan Mudharabah)

Abstract

The imposition of collateral in muḍārabah financing contracts is a separate issue for Islamic banks even though in principle Islamic banks are not required to ask for collateral, but in practice, collateral is one of the elements that must be met by business actors in muḍārabah financing contracts. When the collateral is not applied, problems often arise in the case of debtor default. The problem in this study is whether the imposition of collateral can be used as an effort to resolve debtor disputes in muḍārabah financing contracts. To answer the research question, the method used is a normative juridical research method where the law is not only seen as law in books but also the law in action with the statutory approach and case study approach, namely the decision of the Mahkamah Agung. The results of the study presented that binding guarantees in muḍārabah financing contracts can be used as anticipation to minimize the risk of loss based on article 39 of Law no. 21 of 2008 concerning Islamic Banking. When the business actor defaults, neglects, and breaches the contract in muḍārabah financing, the guarantee can be used as an effort to mitigate the settlement of muḍārabah financing disputes to pay off obligations to Islamic banks.

Measuring Maslahah on Collateral Implementation in Mudaraba Contract at Sharia Banking

“…Secondly is external factor, society's integrity become a main point which means the society as known as customer or agent (muḍārib) of sharia banking must have high an integrity and trusteeship level in order to carry out muḍāraba financing contract because this contract based on profit and loss sharing system (Muhammad, 2019). This is also in accordance with previous researches that PLS products are susceptible to moral hazard and asymmetry information (Hafidah, 2012;Harahap, 2020;Jamilah, 2012).…”

“…Thus, when muḍārib gain such profit from the business partnership, it will be distributed in accordance through the agreed ratio, and in the event of loss, it will be borne fully by the bank (Destiana, 2016;Hadi, 2015;Lestari, 2019;Permata, 2014). This is because, muḍārabah financing contract is basically use trust as the basic principle of it, but practically, sharia banks requires such collateral to customers to guarantee as evidence that the customer will do such moral hazard or asymmetry information that trigger financial loss (Harahap, 2008(Harahap, , 2020.…”

“…Collateral in muḍāraba financing contract only able to be disbursed if customers (muḍārib) have violated the contract of the agreement. This is because, the purpose of collateral is only as a binding which tights and triggers muḍārib to be good faith in carrying out the business partnership that in accordance trough sharia principle (Harahap, 2008;2020;Jamilah, 2012;Maulana, 2014). Furthermore, the number of collateral that offered by customer to the sharia bank is adjusted to the amount of financing which proposed by the customer (Hadi, 2015;Lestari, 2019).…”

“…Furthermore, the number of collateral which provides by customers when receiving muḍāraba financing contract is various, depending on the amount of financing proposed by the customers (Harahap, 2008;Junaedi & Nufus, 2019). Although the existence of collateral in muḍāraba contract is in accordance with maqāṣid shariah concept, specifically hifdz al-māl (Harahap, 2008(Harahap, , 2020Lestari, 2019), it does not clearly enough regarding to the rate of maslahah itself. Thus, it is important to measure the rate of maslahah on collateral implementation of muḍāraba contract in order to know does collateral implementation truly provide maslahah.…”

“…Practically at sharia banking, it does not accordance through the general theory that the bank requires such collateral aspect to customer (muḍārib). The reason why sharia bank requires collateral to customer (muḍārib), because muḍāraba contract contains such high risk due to moral hazard and asymmetry information which might be done by customer (muḍārib), thus the function of collateral in this condition is to be a preventive tool, and this is in line through maqāṣid syariah concept, specifically hifdz al-māl (Harahap, 2020;Lestari, 2019;Muhammad, 2019). Realized that muḍāraba financing contract contains a high risk, it makes sharia banking more interest to offers other financing products such as murābaha, salām, istishna and another product rather than muḍāraba contract, and many others basic problem of muḍāraba financing contract (Saeed, 1996).This happens because as the core product of sharia banking, muḍāraba does not popular enough as another financing product such as murābaha, salām, and istisna.…”