44. Takaful Coverage for Islamic Financing
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1 S H A R I A H R E S O L U T I O N S I N I S L A M I C F I N A N C E 67 Basis of the Ruling The aforesaid SAC s resolution has considered the following: i. Among the basic elements of the proposed model is the application of element of wakaf. However, in the end, the fund will receive and own the contributions of tabarru` from the takaful participants. These tabarru` contributions do not form part of the wakaf capital, rather, the contributions are managed by the wakaf entity for payment of takaful claims; ii. Scholars of Hanafi, Maliki and Hanbali schools allow any kind of contribution or gift to a wakaf entity, either in form of building or perpetual plant, without changing the status of the contribution or gift as wakaf; 71 and iii. The expressed intention and objective of the contributors and their agreement with the wakaf entity are the main factors in determining the status of a particular contribution or gift to the wakaf entity, either as a part of the wakaf asset or not. In this case, the gift or contribution made by the takaful participants is a type of tabarru` and not wakaf. 44. Takaful Coverage for Islamic Financing The SAC was referred to on the issue as to whether it is mandatory for an Islamic financial institution to offer takaful coverage as the first option in covering a financing received by a customer of the Islamic financial institution. 71 Kuwait Ministry of Waqf and Islamic Affairs, Al-Mawsu`ah al-fiqhiyyah al-kuwaitiyyah, 1993, v. 44, p
2 68 S H A R I A H R E S O L U T I O N S I N I S L A M I C F I N A N C E Resolution The SAC, in its 41 st meeting dated 8 March 2004 and 43 rd meeting dated 29 April 2004, has resolved the following: i. For an Islamic financing package which does not include an amount of contribution for coverage, the Islamic financial institution shall offer a takaful plan as the first option to the customer who applied for the Islamic financing that requires coverage. 72 If the customer refused the takaful plan on particular reasons, the customer may choose any conventional insurance as he wished. Such an exemption is only given in consideration of the following factors: a. If the insurance premium is totally borne by the customer; b. If there is a sector or specific class in insurance whereby takaful has no expertise; or c. The customer s application was rejected by takaful company on certain grounds. ii. For an Islamic financing package that includes the amount for contribution of coverage, the Islamic financial institution shall ensure that only takaful plan is used to cover such Islamic financing. Conventional insurance premium shall not be included in Islamic financing package; and iii. If a customer who has taken a conventional insurance coverage for an Islamic financing passes away or suffers any kind of peril that results in his inability to pay for the financing, the Islamic financial institution is entitled to receive compensation from the conventional insurance. 72 The terms first option means the Islamic financial institution will only propose to the customer a takaful coverage and will not propose both takaful and conventional insurance at the same time for the customer s option.
3 S H A R I A H R E S O L U T I O N S I N I S L A M I C F I N A N C E 69 Basis of the Ruling Ideally, all Islamic financing that require coverage shall be covered by takaful. However, for an Islamic financing package that does not include the amount of contribution for coverage, it is justified and reasonable to require the Islamic financial institution to offer takaful as first option to the customer. The approach in allowing the customer to choose any conventional insurance as he wishes (in a case where the Islamic financing package does not include the amount for contribution for coverage) has taken into account various factors, including non-muslim customers, takaful company s readiness in offering certain takaful products, takaful company s expertise in certain class and other factors. This approach is in line with the following hadith of Rasulullah SAW: Whenever I order you something, obey it the best as you could and whenever I forbid you from something, avoid it. 73 In addition, the Islamic financial institution is entitled to receive compensation from a conventional insurance company selected by the customer for the settlement of Islamic financing upon death of or perils on the customer. This is because the insurance coverage contract and the financing contract are two different contracts. The financing contract involves the Islamic financial institution and the customer as financing receiver. On the other hand, the insurance coverage contract involves the customer and the insurance company, whereby the Islamic financial institution is the beneficiary. 45. Takaful Coverage for Conventional Loans In the nation s dual financial system scenario, there are instances whereby customers who have a loan with a conventional financial institution (for purchase of a particular asset) wished to get a takaful coverage scheme to cover such asset. 73 Muslim, Sahih Muslim, Dar al-mughni, 1998, p. 698, hadith no. 412.
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