Harmonization of DSN-MUI Fatwa with Positive Law Study of Legal Bonding of Mortgage Right in Contract for Mudharabah & Musyarakah Agreement

Abstract

The enactment of the principal agreement must be in line with the follow-up agreement because it is a single entity. However, in practice, in agreements that use sharia contracts such as mudharabah and musyarakah which are classified as mandated contracts, they still use acessoir agreements and the follow-up agreements used still follow debt-receivable agreements which are in accordance with the principal agreement. In the acessoir agreement, the dependent rights of Islamic banks still use conventional dependent rights deeds that use the terms creditor and debtor. In fact, mudharabah and musyarakah are cooperation agreements where one party or each party gives up their capital to be managed. Of course, it is wrong if the application of sharia dependent rights is equated with conventional dependent rights. This research is a qualitative research with the method of analyzing the documents of sharia dependent rights deeds and laws. In this study, it was found that the basis for binding sharia dependent rights with mudharabah and musyarakah financing is not debts so that conventional dependent rights deeds cannot be used. The application of the guarantee can be executed if the debtor defaults also cannot be done because in the musyarakah contract the loss is borne together and in the mudharabah contract the loss is borne by the owner of the capital. Sharia dispute resolution should also be in sharia arbitration or religious courts not arbitration and state courts. For this reason, it is also necessary to design an alternative binding of guarantees that impose a profit-sharing-based agreementin accordance with Sharia so that there is no similar interpretation between the concept of debts in conventional contracts and financing in sharia contracts which refers to DSN-MUI Fatwa No. 105 / DSN-MUI / X / 2016 concerning Guarantee of Return of Financing Capital of Mudharabah, Musyarakah, and Wakalah bil Istitsmar.