Hamdard Islamicus Vol. XLIV, No. 4 95 … A JURISTIC STUDY OF QALB AL-DAYN IN ISLAMIC BANKS FROM SHARĪ‘AH PERSPECTIVE ABDUL MUNEEM, DR. NOR FAHIMAH MOHD RAZIF, DR. ABDUL KARIM ALI Academy of Islamic Studies, University of Malaya, Malaysia Email: abdkarim@um.edu.my Received on: 05-06-21 Accepted on: 26-11-21 Abstract: The purpose of this study is to address qalb al-dayn (debt restructuring) from classical and contemporary Sharī‘ah points of view and to analyse the views of Sharī‘ah scholars regarding the practice of qalb al-dayn. The study follows a qualitative research approach where it applies comparative and descriptive analyses methods to explore the thoughts and opinions of classical and contemporary scholars. The study finds that scholars have diverse opinions regarding the application of qalb al-dayn where most of the scholars do not allow to apply qalb al-dayn at all and some other scholars allow applying qalb al-dayn for solvent debtors only with some rigorous restrictions. The majority of scholars agree that the application of qalb al-dayn is not permissible for an insolvent debtor. To overcome those issues, Islamic banks may strictly use a rescheduling of a financing facility instead of restructuring a facility while following the guidelines provided by the scholars. The paper provides beneficial insights to the researchers, the Islamic banks, and their customers to avoid the issue of qalb al-dayn, particularly in debt-based financing, and to establish justice among the society and Islamic banks. Keywords – Debt, Qalb al-dayn, Faskh al-dayn, Sharī‘ah, Islamic banking, Debt rescheduling, Debt restructuring mailto:abdkarim@um.edu.my 96 A Juristic Study of Qalb al-Dayn in Islamic Banks… … 1. Introduction The Islamic banking system is unveiling useful Sharī‘ah compliant products and services. The nature of those products varies from one another and can either be equity-based or debt-based. According to some researchers1, the current practice of Islamic banks is more towards debt- based financing, where the equity portion is very small. The debt-based financing in Islamic banks is mostly provided through al-murābaÍah (cost plus profit sale), and al-tawarruq (monetization), al-ijārah (leasing), al-mushārakah al-mutanāqiṣah (diminishing partnership), bay‘ al-mu’ajjal (sale with deferred payment) and al-qarÌ al-ḥaÎan (benevolent loan)2. The financing products based on those contracts allow a customer to pay the price/rent within certain installments and subsequently the customer falls under an obligation of debt. It is important to mention that Sharī‘ah does not prohibit being indebted. But it warns debtors to be careful about the payment and also forbids having any kind of interest (ribā) while entertaining any kind of loan or debt transaction. Providing debt-based products by Islamic banks and subsequently, collection of that debt from customers may lead to inconvenient events, especially, when there is a loan default or financial stress faced by a customer. Conventional banks have several methods to deal with this kind of issue, such as debt rescheduling and restructuring3. In such practice, the debtor/customer has to pay an extra amount of money to reschedule or restructure the loan and to pay the debt at a later time. Such prohibited practice is also narrated by scholars like al-Alūsī, where they mention that during the era of ignorance (ayyām al-jāhiliyyah) the people were used to take a loan, and once it was due, the usurious creditor used to say to the debtor: “Pay me an extra amount (from the money has been lent from me), I will extend the period of payment”4. 2. Problem Statement When it comes to Islamic banks, the study proves that rescheduling and restructuring of financing facilities resemble the concept of qalb al- dayn/faskh al-dayn (debt restructuring) which invokes some Sharī‘ah issues5. Sharī‘ah scholars (Imām Mālik6 and Ibn Taymiyyah7) discuss the concept of qalb al-dayn and its forms from the practice of the people during their time. According to Imām Mālik8 and Ibn Taymiyyah9, the practice of qalb al-dayn leads to ribā (interest) which is impermissible in Sharī‘ah 10. In this regard, contemporary scholars also do not allow Hamdard Islamicus Vol. XLIV, No. 4 97 … practicing qalb al-dayn in general11, however, due to the current financial system, some scholars allow the practice of qalb al-dayn for some mūsir (solvent debtor) with some strict Sharī‘ah guidelines12. 3. Research Objectives Based on the above matter, there is a dire need to study qalb al-dayn by looking at the opinions of classical and contemporary scholars and uncover the best opinion which assists Islamic banks to continue their smooth performance and efficiency while providing the best financial facilities and services which are Sharī‘ah compliant and compatible with the current financial markets’ trends. Therefore, the objective of this study is to address the concept of qalb al-dayn from classical and contemporary Sharī‘ah points of view and to analyse the views of Sharī‘ah scholars regarding the practice of qalb al-dayn. Moreover, the study also aims to recommend some solutions to the issue which benefit the customers of Islamic banks, the practitioners and the academicians. 4. Literature Review 4.1. Debt (Dayn)-based Financing in Modern Islamic Banking System Borrowing and lending money or other property is allowed in Islam based on the necessity of an individual and organization. Additionally, Islam also provides guidelines for borrowing and lending. Regarding the Quranic approval to dayn, in general, scholars refer to sūrah al-baqarah, verse 282, which holds: “O you who believe, when you transact a debt payable at a specified time, put it in writing”13. Borrowing money from an individual or a financial institution is also one way to fulfill the necessity of someone. Two terms are generally used in the context of borrowing and lending in Arabic which are qarÌ (loan) and dayn (debt). Dayn (debt) refers to liability on someone who has to pay the debt at a later time and the liability may incur in many ways and it does not involve any profit. Whereas qarÌ (loan) is simply defined as a loan that does not involve interest (ribā) and the loan is extended out of goodwill14. Linguistically, dayn is used for several meanings: debt, the price of goods, sale with deferred payment, something which is delayed in its maturity time, and something which is not in the presence15. The 98 A Juristic Study of Qalb al-Dayn in Islamic Banks… … comprehensive meaning of dayn (debt) can cover any kind of liabilities of a person either the liability of a person towards Allah Almighty or towards a human being and the liability can be compensated either by property or any other way. Ibn Nujaim16 explained dayn as an obligation of rights on someone’s liability. Whereas the specific meaning of dayn (debt) can be found in Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), Sharī‘ah Standard No. (4)17, it states: “A debt is any liability that is not in terms of a specified or defined item, whatever the cause of its establishment, i.e. whether its origin is in cash or in a commodity, or in a particular described benefit such as the benefit of using particular things or services of persons. For instance, the consideration in deferred sales and loans is described as a debt”. Therefore, the debt (dayn) is referred to the liability of a person towards creditor or financier which is incurred from any financial contracts such as tawarruq, murābaÍḥah, ijārah, and qarÌ with a financial institution or a person. In the modern Islamic banking system, there are several types of products and services in the market to cater to the needs of the customers18. The products and services must meet the Sharī‘ah requirements before being offered to customers. Ribā (interest), gharar (uncertainty), and maisir (gambling) are some prohibited actions that the contracts must be free of19. Fulfilling these requirements allow the product to be served to the customers. The current products in Islamic banking have differences in their natures. The current practice of Islamic banks shows that normally the customer asks the bank to purchase a specified product from a third party and later the bank buys that product, and the customer purchases it from the bank paying the price in certain installments. MurābaÍah (cost plus profit sale) and tawarruq (monetization) are among the most practiced contracts in Islamic banks that allow the customer to purchase a property i.e., car, house, through an Islamic bank20. And these contracts also allow the customer to pay the price of their purchased property in certain installments e.g., 5 to 20 years with a marked-up price based on their mutual agreement at the time of execution of the contract. In addition, ijārah is a lease facility that is also a Sharī‘ah compliant product, and it is also used very commonly in most of the Islamic banks. Ijārah in the Islamic banks also offers to -rent to own- a facility where the customer pays the rental for a certain period and later the customer owns it21. Hamdard Islamicus Vol. XLIV, No. 4 99 … The above-mentioned debt-based products in Islamic banks have advantages and disadvantages for the customers. The customers can buy their desired property and fulfill their needs using those Islamic banking facilities which are considered as an advantage to the customers. On the other hand, the customers are being in debt to the banks for a period of time to pay the prices of their purchased properties. In such a case, the customers have to continue paying the debt to the banks regardless of their financial hardship. Mehmet Asutay22, and Asyraf Wajdi Dusuki23 claimed that debt-based financing is more practiced in Islamic banks instead of equity-based financing. Mansor Jusoh and Norlin Khalid24 also find that most of the Islamic banks in the world are depending on debt- based financing products leaving the profit and loss sharing products as the least used mode of financing instruments. Therefore, the customers who are entertaining such debt-based financing from Islamic banks are required to fulfill their installments based on their agreement. However, some customers may not be able to pay the installments on their scheduled time hence the banks send reminders to them. In the case that the customer is not able to pay the installments, the bank has the right to take any legal action25. But if the customer comes to the banks seeking assistance for this hardship, the bank may allow the customer to reschedule or restructure (qalb al-dayn) his facility. The restructuring of financing facilities in the modern banking system has a similarity with the concept of qalb al-dayn in classical practices26. 4.2. Qalb al-Dayn in Islamic Jurisprudence Islam allows debt to support a person to fulfill his needs, but at the same time provides boundaries not to be exceeded like ribā27, terms intentionally delaying payment (mumāṭalah) as injustice28, and so on. It also encourages the creditor to give some time for a debtor to repay his debt when he is struggling with financial stresses (i‘sār). In this regard, Allah Almighty says: “If there is one in misery, then (the creditor should allow) deferment till (his) ease”29. Islam cares for the rights of both creditors and debtors; that is why Islam necessitates parties to register a debt agreement. When a debtor fails to repay the debt to the creditor, he may ask the creditor to allow him to prolong the tenure. In some cases, creditors may not allow the debtor to delay the payment and they may impose the debtor to restructure the debt and demand more than the required amount of debt which is prohibited and is called ribā al-jāhiliyyah (interest during the era 100 A Juristic Study of Qalb al-Dayn in Islamic Banks… … of ignorance)30. Qalb al-dayn is a phenomenon where the debtor is unable to pay the debt on time and the creditor obliges another debt on the liability to a debtor to repay his existing debt. Therefore, the debtor is required to pay the existing debt and the new debt with a higher amount than the existing debt31. Qalb al-dayn is a term announced by Ibn Taymiyyah32 and it was used by other Ḥanbalī scholars. Shihāb al-Dīn al-Qarāfī33, Aḥmad Ibn Muḥammad al-Dardīr34, and several other Mālikī scholars used another term, which is faskh al-dayn bi al-dayn (debt revocation). It was discussed when contemporary Islamic financial institutions started exploring and innovating more products and facilities which can conform to the Sharī‘ah rule. The term qalb al-dayn consists of two words. One is qalb and the other is dayn. The word qalb means pure and noble of something derived from the human heart called qalb in the Arabic language as a noble and pure part of the body. Another meaning of qalb is, reversal, inversion and to turn over i.e., turning something over from one side to the other side, for example turning over of a cloth35. According to Al-Rāghib al- Iṣfahānī36, the reason for calling the heart as qalb in Arabic is because of its frequent turning over. The word qalb itself means soul, knowledge, and bravery. The meaning of dayn is mentioned in the earlier section. Usāmah Ibn Ḥamūd al-Lāḥim37 explains qalb al-dayn as the establishment of new debt on a debtor either it is from the same genre of the existing debt or something different. ‘Abd al-Raḥmān al-Aṭram38 adds the reason for the creation of a new debt, which is to accentuate payment of the existing debt. According to the above definitions, there should be two debts for the same debtor and the new debt can be the same as the existing debt or can be something different. Additionally, the purpose of the new debt is to repay the existing debt. Meanwhile, Nazīh Ḥammād39 defines qalb al- dayn as the creation of a new debt which is a deferred payment basis over an existing debt which is also on the liability of the debtor, after the debt is due. The new debt with an increment of quantity or quality can be of a different genre or the same. This definition shows that the new debt will replace the existing debt which is on the liability of the debtor, and it specifies the occurrence of the new debt as after the due date of the existing debt. The definition also adds that the new debt has an additional portion in quantity and characteristics from the same genre of the existing debt, which clearly proves that this new debt is leading to ribā. This is what Imam Malik exemplified with buying a stuff from the creditor and paying it later with Hamdard Islamicus Vol. XLIV, No. 4 101 … a higher price which leads to an additional amount to the borrower to pay to the creditor using the ḥīlah (trick) of purchasing stuff as mentioned in section 4.3.1.2 Besides, the Sharī‘ah Advisory Council (SAC) of The Securities Commission Malaysia (SCM)40 also defines qalb al-dayn, it states: “The term qalb al-dayn refers to the conversion of existing debt into a new debt such as in the following situations: (i) Restructuring of debt/amount payable via an extension of the payment period which results in an increase of the original amount payable without terminating the existing contract; or (ii) Restructuring of debt/amount payable via termination of the existing contract and entering into a new contract with a new amount payable and an extended payment period.” It is mentioned in the above definition by SCM41, that an additional amount is added on top of the original amount to extend the payment period of the existing debt and without terminating the existing debt. In this case, it is similar to the Arab saying before ribā was prohibited, they used to say: “Increase in the asset (which is on the liability of the debtor) for me so that I will increase the period of payment for you”42. In the second scenario, the termination of the existing contract and entering into a new contract with a new amount and a new payment period may raise the issue of ribā also. The existing contract has a certain amount payable, and the new contract will increase that amount to a higher amount for the debtor to pay, which is considered as ribā. However, the definition of qalb al-dayn by Nazīh ×ammād43 is a more comprehensive and reliable definition, where he includes the important issues of qalb al-dayn and gives a clear picture of how qalb al- dayn works. Moreover, the definition of SAC of SCM also pointed out that qalb al-dayn can either take place by terminating the existing debt or without terminating it. This gives room to the customer to restructure the existing debt before or after the debt is due. In a short word, qalb al-dayn is referred to as an execution of a new debt contract over an existing debt contract, by cancelling the existing contract and increasing the amount of the new debt contract to prolong the existing debt. The real picture of qalb al-dayn can be seen through the diagram below: 102 A Juristic Study of Qalb al-Dayn in Islamic Banks… … Diagram 01: Qalb al-Dayn Source: Authors’ own Faskh al-dayn bi al-dayn (debt revocation): Mālikī school use this term which is similar to qalb al-dayn. Al-Dardīr44 and al-Qarāfī45 from the Mālikī school, use this term in their books and explain several forms of faskh al-dayn bi al-dayn, mentioning Sharī‘ah rules based on the forms. Muḥammad Ibn ‘Abdullāh al-Kharashī46 explains that the term faskh al-dayn bi al-dayn is to cancel the liability of a debtor and to replace the debt with the same genre of debt to a deferred debt. In other words, to revoke the liability of a debtor and to replace it with a different genre to a deferred debt, for example, cancellation of debt (money) with a deferred debt (money), e.g. ten ringgits to fifteen ringgits or cancellation of debt of money to replace it with goods in a deferred debt. ‘Alī Muhyī al-Dīn al-Qarah-dāghī47 describes faskh al-dayn bi al-dayn as to cancel a deferred (debt) contract with a deferred price or cash price. The definition of al-Kharashī and al-Qarah-dāghī, explains that faskh al-dayn also works like qalb al-dayn i.e. by cancelling the existing debt and creating a new debt where it can be more than the existing one. 4.3. The Legality of Qalb al-Dayn Ibn Taymiyyah48 and Ibn Qayyim49 and other Mālikī scholars like al- Dardīr50 and al-Kharashī51 explain the rules of qalb al-dayn in their books. The Mālikī and Ḥanbalī schools are the two schools that highlight Creditor Debtor 1st Debt Total amount : MYR 80,000 Amount payable : MYR 26,666 (on the day of 2nd debt ) 2nd Debt/New Debt Existing amount payable MYR 26,666 New amount imposed +MYR 10,000 Total amount payable 03-6-2018 Execution of new debt 1-6-2012 First day of debt 2-6-2018 Maturity date Maturity date extended to 2-6-2019 Hamdard Islamicus Vol. XLIV, No. 4 103 … qalb al-dayn. On the other hand, the ×anafī school and Shāfi‘ī school do not discuss qalb al-dayn explicitly. Therefore, the study considers their rulings on other related issues to explore the closest explanation for qalb al-dayn. 4.3.1. Classical Views of Scholars 4.3.1.1. ×anafī School: Based on the study on ×anafī school, it seems like, they do not mention qalb al-dayn as a term in their fiqh book. But it can be explored from their other rulings for different issues like the rules of a selling contract after debt and vice versa. According to Ibn ‘Ābidīn, it is valid but makrūh (reprehensible) to buy something at a higher price in a sale contract after having a debt with the same person but without having any condition of sale prior to the debt contract. Al-Karkhī and Muḥammad have no objection on this issue, however, Ḥalwanī has an opposite view on that. According to Ḥalwānī, it is prohibited (Íarām) as it may result in saying that if the debtor does not buy from the creditor, the debtor may need to pay the debt immediately. Besides, Khuwahar Zadah explains that such kind of contract can be considered as permissible or impermissible based on the conditions attached to the contract. So, if there is a condition of benefits in the contract, it will be regarded as makrūh (reprehensible). On the other hand, if the benefit comes without having a condition for it, the contract will be considered permissible52. Ibn ‘Ābidīn also mentions that a debt contract can be placed after a sale contract. According to Khaṣṣāf, such a transaction is allowed. Muḥammad Ibn Salamah opines the same in this matter but other scholars from Balkh disliked this and regard this scenario as debt which leads to benefits (interest) because without having that debt, the debtor will not bear the higher price. Some other scholars opine that it is makrūh (reprehensible) when the contract session (majlis al-‘aqd) is one, otherwise, it is allowed and that is because of having both (debt and sale) in one session leads to assuming that the benefits are a condition of that debt. Al-Ḥalwānī issues a fatwa (resolution) following Khaṣṣāf’s opinion. Ibn Salamah opines that this is not debt that leads to benefits, but it is a sale (bay‘ ) that leads to benefits and that is a loan53. 104 A Juristic Study of Qalb al-Dayn in Islamic Banks… … In a nutshell, the ×anafī school even though does not explain qalb al- dayn in a specific way but their discussion on the rules of debt and other issues show that if the debt contract stipulates any kind of benefits whether it is in the shape of the sale contract or any other form, it will be impermissible. However, if the benefits or extra charges come without any conditions, it will be permissible. 4.3.1.2. Mālikī School: The Mālikī school uses a different term of qalb al-dayn which is faskh al-dayn bi al-dayn. The term garnered a lot of attention among Mālikī scholars as many of the scholars mention it in several chapters of their books54. Imām Mālik says for a person who lends his 100 dīnār to someone for a deferred period when the debt is due, the debtor says to the creditor: sell that good to me which is of the price of 100 dīnār on cash, but I will pay you 150 dīnār on a deferred basis. He says this type of contract is invalid and the scholars prohibited such a contract. The reason for this contract being makruh is, the increase in price to prolong the payment, which is similar to the ḥadīth, where Zaid ibn Aslam mentioned that the ribā was in the era of jāhiliyyah (the pre-Islamic period) that a person has the right (debt) over another person for a fixed date. When the debt is due, the creditor says to the debtor whether you pay me now, or you pay me more (interest). So, if the debtor pays, the creditor receives, and the deal is done, otherwise, the creditor increases the amount and prolongs the tenure55. Scholars from the Mālikī school (al-Kharashī, al-Dardīr, al-Ṣāwī, and al-Dusūqī56) explain bay‘al-kāli’ bi al-kāli’ (bilaterally deferred sale) under al-buyū‘al-fāsidah (invalid sale) in their books. They mention that faskh al-dayn bi al-dayn (debt revocation) is the most invalid sale which is also regarded as ribā al-jāhiliyyah (interest of the pre-Islamic period). Based on the study from the Mālikī school, it shows that they demonstrate the ruling of bay‘ al-kāli’ bi al-kāli’ (bilaterally deferred sale) and classified it into three categories: 1. faskh al-dayn bi al-dayn (debt revocation), 2. bay‘ al-dayn bi al-dayn, (sale of debt for debt), 3. ibtidā’ al-dayn bi al-dayn (simultaneous debt for debt sale). Most of the Mālikī scholars consider faskh al-dayn bi al-dayn as an impermissible sale. Hamdard Islamicus Vol. XLIV, No. 4 105 … 4.3.1.3. Shāfi‘ī School: Just like the ×anafī school, Shāfi‘ī school also does not emphasize on qalb al-dayn (faskh al-dayn bi al-dayn) in particular. ‘Iṣām Khalf al- ‘Inzī57 noted some of the reasons: 1. The Shāfi‘ī school allows bay‘ al-‘īnah with the status of karāhah58 and qalb al-dayn is the opposite of bay‘ al-‘īnah as described by the ×anbalī school59. 2. According to the fundamental (uÎul al-fiqh) of the Shāfi‘ī school60, sadd al-dharā’i‘ (prohibition of what may lead to committing sins) is not a source of ruling unless it certainly leads to the prohibited action (Íarām), then it will be regarded as Íarām. Otherwise, it will not be considered as ḥarām and particularly, if it is in deferred sales, and qalb al-dayn is one of them. 3. In the Shāfi‘ī school, the legal maxim61: whether the form of contracts or the meaning should prevail or not does not fit with all the branches of the Sharī‘ah ruling. The application of this maxim varies from branches to branches of Sharī‘ah issues and this is the reason why Shāfi‘ī school does not prohibit many Sharī‘ah issues as they look into the form of that contract, not the meaning or intention. Regarding qalb al-dayn, which requires to conclude a new sale contract between the creditor and debtor not stipulated before in the first contract leading to the allowing of such contract based on their fundamental reasoning62. In conclusion, Shāfi‘ī school does not elaborate on qalb al-dayn because of the aforementioned reasons and those reasons may lead the Shāfi‘ī school to allow qalb al-dayn as they allowed bay‘ al-‘īnah. 4.3.1.4. ×anbalī School: The ×anbalī school prohibits qalb al-dayn just like the Mālikī school in disallowing faskh al-dayn bi al-dayn. In the ×anbalī school, Ibn Taymiyyah came out with the term qalb al-dayn and it has been used by other scholars63. Ibn Taymiyyah says: it is prohibited for the creditor not to allow the insolvent debtor to make the payment in another later period and opt for qalb al-dayn. When the creditor says to the debtor: either you do qalb al-dayn or I will bring you to the court. The debtor is in the fear of being prosecuted by the judge despite not yet being proved in the court of law, but the reality is, he is insolvent. Hence, the debtor goes for qalb al-dayn. According to scholars, such kind of transaction is prohibited (Íarām) and it is not obligatory (to fulfill). This is because he is under duress by the creditor. It will be a mistake to say that it is permissible 106 A Juristic Study of Qalb al-Dayn in Islamic Banks… … according to some scholars to apply qalb al-dayn on an insolvent debtor by using any kind of trick (Íīlah), but the actual dispute among scholars is regarding optional transactions like bay‘ al-tawarruq and al-‘īnah. Ibn Taymiyyah64 also explicitly highlights that some transactions are prohibited by the consensus of scholars. One of them is to apply qalb al- dayn on an insolvent debtor. This is because it is obligatory to allow the debtor to pay when he is able. It is not allowed by the consensus of scholars, to increase the payment from the debtor by using any kind of contract or something else. Ibn Qayyim65 adds that when the creditor believes that he is allowed to ask the debtor for qalb al-dayn and say either you have to pay the debt, or you have to increase the debt and the tenure, then this creditor is considered as an atheist. It is obligatory for him to repent, otherwise, he will be executed, and his property will be taken to the treasury. Based on the above study, it is understood that the ×anbalī school of thought explores qalb al-dayn and they describe issues regarding qalb al- dayn. It can be concluded that according to most of the ×anbalī scholars, qalb al-dayn is regarded as a prohibited (Íarām) contract because the creditor should give the debtor some time to repay his debt and not to ask for more than the amount payable due to delaying payment. Asking for more is the manifestation of ribā. 4.3.2. Contemporary Views of Scholars Contemporary scholars annotate qalb al-dayn based on the situation of debtors and forms of qalb al-dayn. They argue about qalb al-dayn, whether it can be imposed on a solvent debtor or insolvent debtor. According to Muḥammad al-‘Alī al-Qarī66, ‘Abdullāh Sulaimān al- Manī‘67, and Bahrain Islamic Bank68, the prohibition of qalb al-dayn does not apply to an individual solvent debtor or a company who has strong solvency and has enough asset/property to pay back the current debt without qalb al-dayn. But he or the company prefers qalb al-dayn intentionally to ease his current debt without any duress on him. On the other hand, it will not be permissible to apply qalb al-dayn on an insolvent or those who delay payment, as it will be the prohibited (Íarām) version of qalb al-dayn or it may lead to paying extra installments which are not allowed in Sharī‘ah69. However, The Shariah board of Bahrain Islamic bank also allows rescheduling the tenure of a debtor who is facing difficulties with the condition of not taking any extra charges from the debtor. Al-Qarī70 and al-Manī‘71 also do not allow to apply qalb al-dayn on insolvent debtors (mu‘sir) as the creditor should give them some more Hamdard Islamicus Vol. XLIV, No. 4 107 … time to repay the debt, instead of enforcing another debt on them. In addition, al-Manī‘72 does not recommend applying qalb al-dayn for those who like to have debt for a lavish, luxurious lifestyle even though some of them own assets to pay the debt, but are not willing to utilize their property properly. ‘Abd al-Bārī Mash‘al73 does not allow qalb al-dayn (debt restructuring) for an insolvent debtor. According to him, it is impermissible to conclude a tawarruq contract with a condition that the customer must pay his existing debt which is generated from any other Sharī‘ah concepts e.g. murābaÍah or istiṣnā‘ with the same financial institutions, where the customer is facing payment difficulties. This kind of agreement is called qalb al-dayn or faskh al-dayn bi al-dayn which leads to ribā al-jāhiliyyah. Similarly, Muḥammad Taqī al-Usmānī74 opines that qalb al-dayn can be permissible with the status of karāhah (not recommended) however it should be totally impermissible following the opinion of Mālikī and ×anbalī school. Aznan Hasan75 opines that the solvent debtor who refuses to pay the debt, should be imposed on certain punishments as procrastination (mumāṭalah) is a sin and injustice. But, if someone is not insolvent (mu‘sir) but he has temporary financial distress (ta‘tthur), the bank may grant favour to him. This excuse, however, should not be generalized as a precedent as it will have an impact on the overall performance of the financial institution. Hence, qalb al-dayn may be the best solution for such a situation. Looking at the benefits for the bank and the client, qalb al-dayn should be allowed to the debtor who is facing such an issue to protect him from the declaration of bankruptcy and to recover back the debt from the client within certain parameters. AAOIFI76 states in the Sharī‘ah Standard no. (8): MurābaÍah: “5/7 It is not permissible to extend the date of payment of the debt in exchange for an additional payment in case of rescheduling, irrespectively of whether the debtor is solvent or insolvent. 5/8 When there is a default in payment by the customer with regard to installments of the selling price that are due, the amount due is just the amount of the unpaid selling price. It is not permissible for the Institution to impose any additional payment on the customer for the institution's benefit. This provision is, however, subject to item 5/6.” 108 A Juristic Study of Qalb al-Dayn in Islamic Banks… … Similarly, the resolution of International Islamic Fiqh77 and Islamic Fiqh Council78 state that faskh al-dayn bi al-dayn is considered as prohibited in Sharī‘ah. Faskh al-dayn bi al-dayn is something that increases the debt on the debtor’s liability in exchange for increasing the tenure or any other means. The application of faskh al-dayn bi al-dayn takes place by a transaction between creditor and debtor by creating a new debt on the debtor to pay the existing debt full of it or partial. Be the debtor solvent or insolvent. To conclude the new debt, the debtor needs to buy an asset from the creditor with a deferred payment then the debtor needs to sell it back on cash to the creditor to pay the previous debt fully or partially. ‘Abd al-Sattār79 stipulates three conditions for qalb al-dayn to be applied to have new financing. The existing and new contract should fulfill three conditions as below: 1. The new debt contract should not have a relation with the existing contract which is facing difficulties. 2. The debtor (customer) should face difficulties in the liquidation of his assets to repay the debt but at the same time, he is not insolvent. 3. The profits of the new contract should not exceed the profits of the existing contract. This is to avoid the consideration of the extra amount as a late settlement of the existing debt. Nazīh Ḥammād80 classifies qalb al-dayn into six forms. 1. Deferment of a due debt for a debtor, by increasing the amount of debt to prolong the tenure. 2. Same as the previous form but there will be a new contract (this new contract is not really in their intentions), which leads them to achieve their goal of having an additional amount in the new contract with a new payment period. 3. Selling the existing debt, which is already due, to the same debtor with a deferred price that is different from the existing debt (with something permissible to sell at a deferred price). 4. Substitution of the debt with salam contract where the debt turns to the capital of salam. This substitution is in exchange for the specified commodity of the debtor, to a deferred period. 5. Substitution of the debt which is due with usufruct of an asset e.g. house, shop, car, that belongs to the debtor to a specific period e.g. 1 year or 5 years. 6. Selling the debt after its due date, to the same debtor with an asset where the possession takes place later like property, absent goods, and unripe fruits which are not yet ready to harvest. Hamdard Islamicus Vol. XLIV, No. 4 109 … Based on the above classification, Nazīh Ḥammād81 opined that the first two forms from the above, do not comply with the Sharī‘ah, as both forms lead to interest (ribā) by increasing in the quantity or quality of the existing debt. However, the other four forms have some arguments among scholars where he opined that these four forms can be considered as Sharī‘ah compliant. He also added that the debtor may get any cash financing in exchange for something deferred e.g. using tawarruq or salam or istiṣnāʿ or any other Sharī‘ah concepts, to pay back his existing debt, when he is not capable of paying on the due date, even though that financing requires to pay more than his existing debt. However, this method can be followed with a condition that, this extra amount must not go to the same financial institution that has his existing debt or there should not be any link or trick (Íīlah) which leads to ribā. The summary of the above-mentioned opinions of scholars and the resolutions of Islamic institutions is illustrated in the table below: Scholars/ Resolutions Mu‘sir (Insolvent ) Mūsir (solvent) Conditions/Remarks Muḥammad ‘Alī al-Qarī (2003) Not Allowed Allowed It is obligatory to give some time to the insolvent debtor. While for a solvent debtor, who can pay, the new contract is not considered as qalb al- dayn. ‘Abdullāh al- Manī‘ (2011) Not Allowed Allowed 1. Without being forced/duress. 2. Has enough property. 3. Not used to living a lavish life. ‘Abd al-Barī Mash‘al (n.d.) Not allowed The condition of settling the existing debt by the new debt for the customer in financial difficulties is not allowed as it is qalb al-dayn. 110 A Juristic Study of Qalb al-Dayn in Islamic Banks… … Muḥammad Taqī al- Usmānī (2015) Not Allowed (Karāhah) It is recommended to avoid such a contract. Hasan et al. (2016/2018) Not Allowed Allowed for solvent and muta‘atthir (temporary financial difficulties in liquidation) 1. The two contracts should be separated. 2. The new contract should not stipulate to settle the existing contract. 3. The debtor should entertain freely the proceeds of a new contract. ‘Abd al- Sattār Abū Ghuddah (n.d.) Allowed for muta‘atthir (temporary financial difficulties in liquidation) 1. New debt has no relation to existing debt. 2. The debtor is not insolvent but facing difficulties in the liquidation of his assets. 3. The amount in the contract should not exceed the existing contract. Nazīh Ḥammād (2011) Has classified qalb al-dayn into six (6) categories. Two of those categories are impermissible and the rest 4 categories are allowed according to him. In those four (4) categories he did not differentiate between mūsir and mu‘sir. Resolutions of Islamic Financial and Non-Financial institutions Sharī‘ah Resolution of the Bahrain Islamic Bank (2013) Not Allowed Allowed 1. Should have strong solvency 2. Not delaying in payment 3. No extra charges Hamdard Islamicus Vol. XLIV, No. 4 111 … AAOIFI (2015) Not Allowed “It is not permissible to extend the date of payment of the debt in exchange for an additional payment in case of rescheduling, irrespectively of whether the debtor is solvent or insolvent”. International Islamic Fiqh Academy (2006) Not Allowed It (qalb al-dayn/faskh al-dayn) increases the debt on the debtor’s liability in exchange for increasing the tenure or any other means. Islamic Fiqh Council (2006) Not Allowed It (qalb al-dayn/faskh al-dayn) increases the debt on the debtor’s liability in exchange for increasing the tenure or any other means. Table 01: Scholars’ Views and Resolutions on Qalb al-Dayn Source: Authors’ summarization of views and resolutions 5. Methodology A qualitative research approach is adopted to ascertain in-depth information and to fulfil the objectives of this research. Qualitative research assists a researcher in describing and interpreting a phenomenon82. Describing the scholars’ opinions on qalb al-dayn and interpreting it with the current practice in the modern banking system correspond with a qualitative research approach through the available data in documents i.e., classical books and other current available literature. Hence, to achieve the objectives of this research, a qualitative research approach suffices. The data of this research is collected from several sources such as classical fiqh books of four schools of thought, modern Islamic finance-related books, articles, conference papers, Sharī‘ah standards, and resolutions. Moreover, the research follows the descriptive analysis method to address the subject matter and to find the rationale behind the legality of qalb al-dayn and its current practice. The 112 A Juristic Study of Qalb al-Dayn in Islamic Banks… … comparative analysis method is also applied to compare and contrast the views of Sharī‘ah scholars on the subject matter. 6. Discussion Qalb al-dayn is being discussed by the classical and contemporary scholars based on their understanding and their school of thought (madhhab). It is worthy to note that most of the scholars strive to close all the doors of ribā as Sharī‘ah clearly prohibits it. In such a case, they assume and predict many phenomena that might happen in the financial transaction either through debt or sale contract, and based on that they provide some Sharī‘ah resolutions. Regarding qalb al-dayn in the classical studies, Imām Mālik, al-Kharashī, al-Dardīr, al-Ṣāwī, al-Dusūqī from Mālikī school and Ibn Taymiyyah, Ibn al-Qayyim from ×anbalī school scrutinize the issue of qalb al-dayn while Mālikī school use a different term which is faskh al-dayn bi al-dayn. Both schools similarly conclude that the practice of qalb al-dayn leads to ribā al-jāhiliyyah. On the other hand, Ḥanafī and Shāfi‘ī school have a little discussion on the matter. Looking at their discussion on debt issues it seems that Ḥanafī school has different opinions among the scholars however, they emphasize the issue of any benefits that come from debt contract. Many of the Ḥanafī scholars opine that if the benefits from a debt contract come through a condition on the contract it will be regarded as ribā otherwise the benefits are permissible. Shāfi‘ī school does not explicitly mention any rules for qalb al-dayn in the fiqh book, however, since Shāfi‘ī school allows bay‘ al-‘inah, and prioritizes the form of contract over its meaning or intention, qalb al-dayn can be considered as permissible. Since Islamic banks offer debt-based financing, some customers are unable to attend to their liabilities of paying the installments due to financial hardship. In such a case, Islamic banks offer either restructuring or rescheduling of the financing facility. The example of the concept of qalb al-dayn from the contemporary practice of Islamic banks can be seen through the practice of restructuring of financing facilities. The restructuring of financing facilities is done through executing a new financing contract over the existing contract, where the debtor must pay the capital of the current financing facility in an extended tenure and also an additional amount that incurs from the new financing contract. Thus, it has the similarity with the concept of qalb al-dayn where a debtor must pay an additional amount to extend the period of the loan83. The contemporary scholars have diverse opinions and arguments on the legality of qalb al-dayn especially the mechanism that is used in Hamdard Islamicus Vol. XLIV, No. 4 113 … modern Islamic banks where some of them classify the debtors into solvent and insolvent and provide the ruling based on their situation. On the other hand, other scholars do not differentiate between solvent and insolvent to show their views on the matter. The contemporary scholars and Islamic financial and non-financial institutions (‘Abd al-Bārī Mash‘al, Muḥammad Taqī Usmānī, AAOIFI, International Islamic Fiqh Academy and Islamic Fiqh Council) consider qalb al-dayn as impermissible like Ḥanbalī school without differentiating the debtors. This is because it is tantamount to ribā where the creditor is increasing the debt by extending the tenure of the payment which is happened in the restructuring of financing facilities in modern Islamic banks84. The majority of scholars from those who differentiate the debtors also do not allow qalb al-dayn from insolvent debtors due to the fact that the Quranic verse: “If there is one in misery, then (the creditor should allow) deferment till (his) ease”85 commands to allow them ample time to pay back the debt. Thus, imposing an extra amount for allowing them to pay later is considered as an action opposite of Quranic guidelines. The same group who allows for solvent debtors to practice qalb al-dayn, which is the restructuring of financing facility in modern Islamic banking, thinks that a contract in the facility is considered as a new contract that must be separated from the existing one, thus it is not qalb al-dayn. According to the researcher, consideration of the situation of a debtor is necessary for the creditor while asking for repayment based on the Quranic verse (2: 280). Moreover, qalb al-dayn/the restructuring of financing facility should be avoided by the Islamic banks as it might lead to ribā through a new contract on the same subject matter of the contract. In other words, that new contract is a kind of trick to expand the tenure and charge for a higher amount for the same subject matter. Therefore, the researcher concludes that qalb al-dayn can be totally avoided by rescheduling a financing facility process. In such a facility, the tenure will be extended while keeping the original amount of the debt and the debtor will pay a lesser amount for the monthly installment throughout the extended tenure. 7. Conclusion Sharī‘ah allows to incur debt (dayn) and it has set the principles and guidelines to follow. However, incurring more debts leads to many issues and challenges to the debtor and creditor as well. The practice of qalb al- dayn was famous among the people of ignorance (ayyām al-jāhiliyyah) once the debtor was failed to fulfill his promise to pay the debt and as a 114 A Juristic Study of Qalb al-Dayn in Islamic Banks… … result, the creditor stipulates to pay extra to allow him some more time which is tantamount to ribā (interest) in Sharī‘ah. Based on the study, it is proven that according to the Mālikī and ×anbalī school, qalb al-dayn is not allowed. The reason is, the creditor stipulates interest (ribā) in exchange for increasing the loan/debt period for the debtor, while the debtor is unable to pay, and he is forced to pay an additional amount to extend the loan/debt period. That is what is prohibited in the al-Qur’ān which says to grant the debtor some time to repay the debt amount. In the ×anafī school, it is allowed to receive any extra amount without stipulating that extra portion in the debt contract allowing the debtor to pay the additional amount. The Shāfi‘ī school allows bay‘ al-‘īnah and may result in allowing qalb al-dayn as it is not stipulated in the transaction and the structure of the transaction is valid. The contemporary scholars also have the same opinion of qalb al- dayn to be prohibited when it comes to an insolvent debtor, and there is no dispute among them. However, looking into the benefits of Islamic financial institutions and their customers, some of the scholars allow qalb al-dayn with certain conditions. 1. One of the conditions is that the debtor must be solvent in his financial status. 2. Second, he has the capacity to pay back the debt to the bank without incurring another debt to pay for the current debt. 3. Third, the debtor is a solvent and has the capacity to pay the current debt, however, he is encountering a temporary liquidity problem (ta‘tthur) where he requires an additional amount of money to purchase some goods or machinery items which allows him to operate his business smoothly, thus he needs additional financing from the bank. In such a situation, the scholars allow to apply qalb al-dayn on the debtor considering it as a top-up (additional financing) on the current debt which benefits both the bank and the debtor in a sense that the bank can continue to provide financing efficiently and avoid any kind of disruption in the continuity of the transaction. At the same time, the debtor can acquire the required amount to continue his business and he can protect himself from defaulting on his debt or facing any kind of legal action since he is capable to pay both of the financing facilities together. According to the researchers, qalb al-dayn is among the non- Sharī‘ah compliant activities which Islamic banking institutions must avoid from their practices e.g. restructuring of financing facilities and they should be more careful from involving in ribā directly or indirectly. Additionally, to avoid the non-Sharī ‘ah income, the IFIs should not charge an extra amount to reschedule the payment of a customer. It also Hamdard Islamicus Vol. XLIV, No. 4 115 … should be noted that the IFIs should separate the facilities they are providing to the same customer so that it will not be meant that the increase in the price of a new contract to prolong the existing tenure. Moreover, to ensure that the contract does not conflict with Sharī‘ah rules while processing the application, it should be noted that the IFIs must consult with the respected Sharī‘ah board when the debtor applies for such facility. In addition, Islamic financial institutions need to move more towards equity-based financing instead of depending on debt-based financing. 8. Policy Implications: Regarding the policy implications of this study, the findings of this study will assist the authority and Sharī‘ah supervisory board to issue guidelines and Sharī‘ah resolutions on the subject matter. The executives and employers will have a profound understanding of qalb al-dayn and to compare and contrast the concept and practice and to identify the issues and the customers and stakeholders will be aware and guided to perform their duty accordingly to avoid any circumstances related to the subject matter. Moreover, the researchers might find it interesting to explore and recommend Sharī‘ah compliant alternatives of qalb al-dayn. Notes and References 1 Atif Khan, “Is Islamic Banking Truly Islamic or is it Just Cosmetically Enhanced Conventional Banking,” Islamica Magazine, 2004, https://islamicfinanceaffairs. wordpress.com/2007/05/26/is-islamic-banking-truly-islamic-or-is-it-just-cosmetically- enhanced-conventional-banking/, accessed on 18 December 2021; Mehmet Asutay, “Conceptualisation of the Second Best Solution in Overcoming the Social Failure of Islamic Banking and Finance: Examining the Overpowering of Homo Islamicus by Homo Economicus,” International Journal of Economics, Management and Accounting 15, no. 2 (2007), 173-195; Asyraf Wajdi Dusuki, “The Ideal of Islamic Banking: A Survey of Stakeholders’ Perceptions,” Review of Islamic Economics 11, no. 3 (2007), 29-52. 2 Younes Soualhi, “Application of Shari‘ah Contracts in Contemporary Islamic Finance: A Maqāṣid Perspective,” Intellectual Discourse 23, no. S.I. (2015), 333-354; International Shariah Research Academy for Islamic Finance (ISRA), Islamic Financial System: Principles And Operations 2nd ed. (Kuala Lumpur: ISRA, 2016), 179-186; Amir Shaharuddin, Shari‘ah Issues in Islamic Banking and Finance, (Negeri Sembilan, Malaysia: USIM Press, 2016), 20; Aishath Muneeza, Muhammad Fahmi Fauzi, Muhammad Faisal Bin Mat Nor, Mohamed Abideen, and Muhammed Maher Ajroudi, “House Financing: Contracts Used By Islamic Banks For Finished Properties in Malaysia,” Journal of Islamic Accounting and Business Research 11, no. 1 (2020), 168 - 178. 116 A Juristic Study of Qalb al-Dayn in Islamic Banks… … 3 International Monetary Fund (IMF), External Debt Statistics: Guide for Compilers and Users (USA: IMF, 2014), 92; Jose M. Garrido, Out of Court Debt Restructuring, (Washington, DC: World bank, 2012), 45. 4 Maḥmūd Ibn ‘Abd Allāh al-Alūsī, Tafsīr al-Alūsī - Rūḥ al-Ma‘ānī, (Bayrut: Dār Iḥyā’ al-Turāth al-‘Arabī, n.d.), 4: 55. 5 Abdul Muneem, Nor Fahimah Mohd Razif, and Abdul Karim Ali, “Issues on Restructuring of a Financing Facility in Malaysian Islamic Banks,” Jurnal Syariah 28 no. 1 (2020), 105-124. 6 Mālik Ibn Anas, Muwaṭṭa‘ al-Imām Mālik, (31:84) ed. Kulāl Ḥasan ‘Alī (Beirut: Mu’assasah al-Risālah Nāshirūn, 2013), 512-513. 7 Aḥmad Ibn ‘Abd al-Ḥalīm Ibn Taymiyyah, Al-Ḥisbah Fi al-Islām, (Beirūt: Dār al-Kutub al-ʿIlmiyyah, n.d.), 20; Ibn Taymiyyah, Majmū‘ al-Fatāwā, 3rd ed. (Al-Iskandariyyah: Dār al-Wafā, 2005), 28: 46. 8 Mālik Ibn Anas, Muwaṭṭa‘ al-Imām Mālik, (31:84) 9 Ibn Taymiyyah, Al-Ḥisbah Fi al-’Islām, 20; Ibn Taymiyyah, Majmū‘ al-Fatāwā, 28: 46. 10 Ibn Taymiyyah, Al-Ḥisbah Fi al-’Islām, 20; Ibn Taymiyyah, Majmu‘ al-Fatawa, 28: 46; Muḥammad Ibn ʿ Abdullāh al-Kharashī, Sharḥ al-Kharashī ‘alā Mukhtaṣar Khalīl, (Beirut: Dār al-Kutub al-ʿ Ilmiyyah, 1997), 5: 394. 11 Nasrun Bin Mohamad @ Ghazali, “Tawarruq in Malaysian Financing System: A Case Study on Commodity Murabahah Product at Maybank Islamic Berhad,” (Master's thesis, University of Malaya, Kuala Lumpur, Malaysia, 2014), 93-94; Aznan Hasan, Muhamad Nasir Haron, Mohd Faysal Mohammed, & Budeeman Mana, “Rescheduling and Restructuring of Islamic Financing Facilities: A Sharī‘ah Perspective”, ISRA Research Paper No. 100, (Kuala Lumpur, Malaysia: ISRA, 2018), 63-64; ʿAbd al-Bārī Mashʿ al, “Al-Tawarruq Kamā Tajrīh al-Maṣārif al-Islāmiyyah”,11-13 http://www.raqaba.co.uk/sites/default/files/ltwrq_km_tjryh_lmsrf_lslmy.pdf, accessed 18 December 2021. 12 ʿAbd al-Bārī Mashʿ al, “Al-Tawarruq Kamā Tajrīh al-Maṣārif al-Islāmiyyah”, 12; Muḥammad Taqī al-Usmānī, Fiqh al-Buyū‘ ‘ala al-Madhāhib al-Arba‘ah, (Karachi: Maktabah Maʿ ārif al-Qur’ān, 2015), 558-559; Hasan, Haron, Mohammed and Mana, Rescheduling and Restructuring of Islamic Financing Facilities: A Sharī‘ah Perspective, 7; Muḥammad al-ʿ Alī al-Qarī, “Al-Tawarruq Kamā Tajrīh al-Maṣārif,” (Paper presented in Al-Majmaʿ al-Fiqh al-Islāmī of Muslim World League, Makkah, 2003), 651; ʿ Abdullāh Sulaimān al-Manīʿ , “Ḥukm Qalb al-Dayn ʿ ala al-Madīn,” (Paper presented in 4th Fiqh Conference for Islamic finance Institutions, Kuwait, 2011), 217-221. 13 The Meanings of the Noble Qur’an, 2:282, Translated by Mufti Muhammad Taqi Usmani (Karachi: Maktaba Ma’ariful Quran, 2010). 14 Shihāb al-Dīn Aḥmad al-Qarāfī, Al-Dhakhīrah (Beirut: Dār al-Gharb, 1994) 5: 286; Kamāl al-Dīn Ibn al-Humām, SharÍ FatÍ al-Qadīr (Beirut: Dār al-Kutub al-ʿIlmiyyah, 2003), 7: 206; Muhammad Ayub, Understanding Islamic Finance (West Sussex: John Wiley & Sons, 2007), 47. 15 Aḥmad Ibn Muḥammad al-Fayyūmī, Al-MiÎbah al-Munīr, (Beirut: Maktabah Lubnān, 1987), 78; Muḥammad Ibn Abū Bakr al-Razī, Mukhtār al-SiÍāÍ, (Beirut: Maktabah Lubnan Nāshirun, 1986), 91; Muḥammad Ibn Mukrim Ibn Manzūr, Lisān al-‘Arab, (Beirut: Dar Ṣādir, 1994), 13: 167. 16 Zain al-Dīn Ibn Nujaim, Fatḥ al-Ghaffār bi Sharḥ al-Manār (Beirut: Dār al-Kutub al- ʿIlmiyyah, 2001). 17 Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), Sharī‘ah Standards for Islamic Financial Institutions, (Manama, Bahrain: AAOIFI, 2015), 117. 18 Muzammil Khurshid, and Muhammad Riaz Mahmood, “A Comparative Study of Adoption of Conventional Banking and Islamic Banking in Pakistan,” Hamdard Islamicus 43, no. 3 (2020), 7-17; Tareq Moqbel, and Habib Ahmed, “Flexibility and http://www.raqaba.co.uk/sites/default/files/ltwrq_km_tjryh_lmsrf_lslmy.pdf Hamdard Islamicus Vol. XLIV, No. 4 117 … Sharī‘ah Compliance of Islamic Financial Contracts: An Evaluative Framework,” Arab Law Quarterly 35, no. 1-2 (2020),107; Muhammad Shahrul Ifwat Ishak, and Fathullah Asni, “The Role of Maqasid al-Shariʿah in Applying Fiqh Muamalat into Modern Islamic Banking in Malaysia,” Journal of Islamic Accounting and Business Research 11, no. 10 (2020), 2137-2154. 19 Muhammad Iman Sastra Mihajat, “Contemporary Practice of Ribā, Gharar and Maysir in Islamic Banking and Finance,” International Journal of Islamic Management and Business 2, no. 2 (2016), 1; Wan Musyirah Wan Ismail, Ida Rahayu Mahat, and Nurul Asma Mazlan, “Awareness On Prohibited Elements in Muamalat: Common Practice in Life,” Journal of Contemporary Islamic Studies 6, no. 1 (2020), 95. 20 International Shariah Research Academy for Islamic Finance (ISRA). Islamic Financial System: Principles and Operations, 206-237. 21 Ibid. 22 Asutay, “Conceptualisation of the Second Best Solution in Overcoming the Social Failure of Islamic Banking and Finance: Examining the Overpowering of Homoislamicus by Homoeconomicus”, 2007, 173. 23 Dusuki, “The Ideal of Islamic Banking: A Survey of Stakeholders’ Perceptions,” 2007, 29. 24 Mansor Jusoh and Norlin Khalid, “A Model of Demand for Islamic Banks’ Debt-Based Financing Instruments,” Jurnal Pengurusan (UKM Journal of Management) 39 (2013), 31-36. 25 Mohd Johan Lee, Islamic Finance Recovery, Rescheduling and Restructuring of Islamic Financing Facilities, (Selangor, Malaysia: LexisNexis Malaysia Sdn. Bhd., 2016). 26 Hasan, Haron, Mohammed and Mana, “Rescheduling, Refinancing and Restructuring of Islamic Financing Facilities from the Sharī‘ah Perspective, 3. 27 Ayub, Understanding Islamic Finance, 12. 28 Ṣaḥīḥ al-Bukhārī, (12:2400), Translated by Muhammad Muhsin Kahn (Riyadh: Darussalam Publishers and Distributors, 1997). 29 Usmani, The Meanings of the Noble Qur’an, 2:280. 30 Mālik Ibn Anas, Muwaṭṭa’ al-Imām Mālik, (31:84). 31 Ibn Taymiyyah, Al-×isbah Fi al-Islām, 20; Ibn Taymiyyah, Majmū‘ al-Fatāwā, 28: 46. 32 Ibn Taymiyyah, Al-×isbah Fi al-Islām, 20; Ibn Taymiyyah, Majmū‘ al-Fatāwā, 28: 46. 33 Shihāb al-Dīn al-Qarāfī, Al-Dhakhīrah, 5: 267; 280; 294; 302; 303. 34 Aḥmad Ibn Muḥammad al-Dardīr, Al-SharÍ al-Ṣaghīr Maʿa ×āshiyah al-Ṣāwī, Ed. by Aḥmad Ibn Muḥammad, (Al-Qāhirah: Dār al-Ma‘ārif, n.d), 3: 96; Shams al-Dīn al- Dusūqī, ×āshiyah al-Dusūqī ‘alā al-SharÍ al-Kabīr - (Al-Qāhirah: ‘Īsā al-Bābī al-Ḥalabī wa Shurakāʾ uh, n.d), 3: 61. 35 Aḥmad Ibn Fāris, Maqāyīs al-Lughah, ed. by Abd al-Salām Muḥammad Hārūn, (Syria: Ittiḥād al-Kitāb al-ʿ Arab, 2002), 5: 27; Al-Fayyūmī, Al-Miṣbāḥ al-Mūnīr, 195; Al-Rāghib al-Iṣfahānī, Al-Mufradāt fi Gharīb al-Qur’ān, (Beirut: Dār al-Maʿrifah, n.d.), 411; Muḥammad Qalʿ ah Jī, Ed. by Ḥāmid Ṣādiq Qanībī, and Quṭub Muṣṭafā Sānū, Mu’jam Lughah al-Fuqahā’, (Beirut: Dār al-Nafāʾis, 1996), 336. 36 Al-Iṣfahānī, Al-Mufradāt fi Gharib al-Qur’ān, 411. 37 Usāmah Ibn Ḥamūd al-Lāḥim, Bay‘ al-Dayn wa Taṭbīqātuhu al-Mu‘āṣarah fī al-Fiqh al-ʾIslāmī, (Riyāḍ: Dār al-Maymān, 2012), 110. 38 ‘Abd al-Raḥmān al-Aṭram, “Qalb al-Dayn Ṣuwaruhu wa AÍkāmuhu wa Bada’iluh,” (Paper presented in 4th Fiqh Conference for Islamic Finance Institutions, Kuwait, 2011), 232. 39 Nazīh Ḥammād, “Qalb al-Dayn Ṣuwaruhu wa Aḥkāmuhu wa Badā’iluhu al-Shar‘iyyah fi Mu‘āmalat al-Maṣarifiyyah al-Islāmiyyah al-Muʿ āṣarah,” (Paper presented in 4th Fiqh Conference for Islamic Finance Institutions, Kuwait, 2011), 242. 118 A Juristic Study of Qalb al-Dayn in Islamic Banks… … 40 Sharī‘ah Advisory Council (SAC) of The Securities Commission Malaysia (SCM), “Qalb al-Dayn and It’s Application in Sukuk Restructuring (192th Meeting, 2016)”, Official Website of Securities Commission Malaysia, https://www.sc.com.my/api/documentms/download.ashx?id=5f0c31dc-daa9-43c1-80ac- e7ecf70c8e44, accessed on 18 December 2021. 41 Ibid. 42 Al-Alūsī, Tafsīr al-Alūsī - Rūḥ al-Ma‘ānī, 4: 55; Wazārah al-Awqāf wa al-Shu’ūn al- Islāmiyyah, al-Mawsu‘ah al-Fiqhiyyah al-Kuwaitiyyah, (Kuwait: Wazārah al-Awqāf wa al-Shu’ūn al-Islāmiyyah, 1992), 22: 52. 43 Nazīh Ḥammād, “Qalb al-Dayn Ṣuwaruhu wa AÍkāmuhu wa Badā’iluhu al-Shar‘iyyah fi Mu‘āmalat al-Maṣarifiyyah al-Islāmiyyah al-Muʿāṣarah,” (Paper presented in 4th Fiqh Conference for Islamic finance Institutions, Kuwait, 2011), 242. 44 Al-Dardīr, Al-SharÍ al-Ṣaghīr Ma‘a Ḥāshiyah al-Ṣāwī, 3: 96; Al-Dusūqī, Ḥāshiyah al- Dusūqī ‘alā al-Sharḥ al-Kabīr, 3: 61. 45 Al-Qarāfī, Al-Dhakhīrah, 5: 267; 280; 294; 302-303. 46 Al-Kharashī, SharÍ al-Kharashī ‘alā Mukhtaṣar Khalīl, 5: 394. 47 ʿAlī Muhyī al-Dīn al-QaraÍ-dāghī, “Faskh al-Dayn Bi al-Dayn Aw Fi al-Dayn: Dirāsah Fiqhiyyah Muqāranah,” (Paper presented in 18th Council of Islamic Fiqh Council, Muslim World League, Makkah, 2006), 10. 48 Ibn Taymiyyah, Majmu‘ al-Fatawa, 28: 46. 49 Muḥammad Ibn Abū Bakr Ibn Qayyim, Al-Ṭuruq al-×ukmiyyah fī al-Siyāsah al- Shar‘iyyah, (Makkah: Dār ‘Ālam al-Fawā’id, 2007), 633. 50 Al-Dardīr, Al-Sharḥ al-Ṣaghīr Ma‘a Ḥāshiyah al-Ṣāwī, 3: 96. 51 Al-Kharashī, SharÍ al-Kharashī ‘alā Mukhtaṣar Khalīl, 5: 394. 52 Muḥammad Amīn Ibn ‘Óbidīn, Ḥāshiyah Ibn ‘Óbidīn - Radd al-Muḥtār ‘alā al-Durri al-Mukhtār, (Riyāḍ: Dār ʿĀlam al-Kutub, 2003), 7: 397. 53 Ibid, 7: 396-397. 54 Al-Kharashī, Sharḥ Al-Kharashī ‘alā Mukhtaṣar Khalīl, 5: 394; Al-Dusūqī, ×āshiyah al-Dusūqī ‘alā al-SharÍ al-Kabīr, 3: 61; Al-Dardīr, Al-SharÍ al-Ṣaghīr ma‘a ×āshiyah Al-Ṣāwī, 3: 96; Aḥmad Ibn Muḥammad Al-Ṣāwī, ×āshiyah al-Ṣawī alā al-SharÍ al- Ṣaghīr – Bulghah al-Sālik li Aqrab al-Masālik, (Beirut: Dār al-Kutub al-ʿImiyyah, 1995), 3: 56. 55 Mālik Ibn Anas, Muwaṭṭa’ al-Imām Mālik, (31:84) 56 Al-Kharashī, Sharḥ al-Kharashī ‘alā Mukhtaṣar Khalīl, 5: 394; Al-Dusūqī, ×āshiyah al-Dusūqī ‘alā al-SharÍ al-Kabīr, 3: 61; Al-Dardīr, Al-SharÍ al-Ṣaghīr ma‘a ×āshiyah al-Ṣāwī, 96; Al-Ṣāwī, ×āshiyah al-Ṣawī alā al-SharÍ al-Ṣaghīr, 3: 56. 57 ʿ Iṣām Khalf al-ʿInzī, “Qalb al-Dayn: Tajdīd ‘Uqūd al-MurābaÍāt Wa al-Wakālāt al- Istithmāriyyah,” (Paper presented in 4th Fiqh Conference for Islamic Finance Institutions, Shura Sharia Consultancy, Kuwait, 2011), 264. 58 Muḥammad Ibn Abū al-ʿ Abbās al-Ramlī, Nihāyah al-Muhtāj Ila SharÍ al-Minhāj, 3rd eds, (Beirut: Dar al-Kutub al-Ilmiyyah, 2003), 3: 477. 59 Manṣūr Ibn Yūnūs al-Buhūtī, Kashshāf al-Qinā‘ ‘an Matn al-Iqnā‘, (Beirut: ‘Ālam al- Kutub, 1983), 3: 186. 60 ʿ Abdullāh Badr al-Dīn al-Zarkashī, Al-BaÍr al-Muḥiṭ Fī UÎūl al-Fiqh, 2nd ed, (Kuwait: Wazārah al-Awqāf wa al-Shuʾ ūn al-Islāmiyyah, 1992), 6: 85. 61 Jalāl al-Dīn al-SuyūÏī, al-Ashbāh Wa al-Naẓā’ir Fī Qawā‘id Wa Furū‘ Fiqh al- Shafi‘iyyah, (Riyāḍ: Maktabah Nazzār Muṣṭafā al-Bāz, 1997), 1: 264. 62 Al-ʿInzī, “Qalb al-Dayn: Tajdīd ‘Uqūd al-MurābaÍāt Wa al-Wakālāt al- Istithmāriyyah”, 264. 63 Sharf al-Dīn al-Hajjāwī, Al-Iqnā’ fi Fiqh al-Imām AÍmad Ibn ×anbal, (Beirūt: Dār al- Ma‘rifah, n.d.), 2: 77; Al-Buhūtī, Kashshāf al-Qinā‘ ‘an Matn al-Iqnā‘, 3: 186; Muṣṭafā Ibn Sa‘d Al-SuyūÏī, MaÏālib ’ūli Al-Nuhā, (Damascus: Al-Maktab al-Islāmī, 1994), 3: 62. 64 Ibn Taymiyyah, Al-×isbah, 20; Ibn Taymiyyah, Majmū‘ al-Fatāwā, 28: 46. Hamdard Islamicus Vol. XLIV, No. 4 119 … 65 Ibn Qayyim, Al-Ṭuruq al-Ḥukmiyyah fī al-Siyāsah al-Shar‘iyyah, 633. 66 Muḥammad al-‘Alī al-Qarī, “Al-Tawarruq Kamā Tajrīh al-MaÎārif,” (Paper presented in Al-Majma‘ al-Fiqh al-Islāmī of Muslim World League, Makkah, 2003), 651. 67 ʿAbdullāh Sulaimān al-Manīʿ , “Ḥukm Qalb al-Dayn ‘ala al-Madīn,” (Paper presented in 4th Fiqh Conference for Islamic finance Institutions, Kuwait, 2011), 218. 68 Sharī‘ah Board of Bahrain Islamic Bank, “Fatāwā”, Bahrain Islamic Bank, https://bisb.com/sites/default/files/Fatawy-Booklet.pdf, 362 accessed on 18 December 2021. 69 Ibid. 70 Al-Qarī, “Al-Tawarruq Kamā Tajrīh al-Maṣārif”, 651. 71 Al-Manīʿ , “Ḥukm Qalb al-dayn ʿAla al-Madīn”, 219. 72 Ibid. 73 ʿAbd al-Bārī Mashʿal, “Al-Tawarruq Kamā Tajrīh al-MaÎārif al-Islāmiyyah”, 11. 74 Al-‘Usmānī, Fiqh al-Buyū‘ ‘ala al-Madhāhib al-Arba‘ah, 558-559. 75 Hasan, et al., “Rescheduling, Refinancing and Restructuring of Islamic Financing Facilities from the Sharī‘ah Perspective”, 2018, 37-38. 76 AAOIFI, Sharī‘ah Standards for Islamic Financial Institutions, 214. 77 International Islamic Fiqh Academy (IIFA) of Organization of Islamic Cooperation (OIC), Resolution no. 158 (7/17), Ammān, Jordan, 24-28 June 2006. 78 Islamic Fiqh Council (IFC) of Muslim World League (MWL), 18th Council, Resolution no. 3, Makkah, 8-12 April 2006. 79 ʿ Abd al-Bārī Mashʿ al, “Qaḍāyā Jadaliyyah fi al-Tamwīl al-Islāmiyyah,” (Seminar on Qaḍāyā Jadaliyyah fi al-Tamwīl al-Islāmiyyah, International Islamic University Malaysia, 22 May 4102), https://assabeel.net/article/2014/6/18/2- -التمويل-في-جدلية-قضايا للباحثين-موجهة-اإلسالمي /, accessed on 17 December 2021. 80 Ḥammād, “Qalb al-Dayn Ṣuwaruhu wa AÍkāmuhu wa badā’iluhu al-Shar‘iyyah fi Mu‘āmalÉt al-MaÎarifiyyah al-Islāmiyyah al-Mu‘āÎarah,”; Shura Sharī‘ah Consultancy, “Al-Bayān al-Khitāmī wa Qarārāt wa Tawṣiyāt,” (Resolution No. 3). (Proceedings of 4th Fiqh Conference for Islamic Finance Institutions, December, Kuwait, 2011), 242-256. 81 Ibid 256-261. 82 Arthur Cropley, Qualitative research methods: A practice-oriented introduction for students of psychology and education (Riga, Latvia: Zinātne, 2019),5. 83 Abdul Muneem, Nor Fahimah Mohd Razif, and Abdul Karim Ali, “Issues on Restructuring of a Financing Facility in Malaysian Islamic Banks,” (2020), 105; MoÍammad MaÍbubi Ali, and Rusni ×assan, “Survey on Sharī‘ah non-compliant events in Islamic banks in the practice of Tawarruq financing in Malaysia,” ISRA International Journal of Islamic Finance 12, no. 2 (2020): 163. 84 Abdul Muneem, Nor Fahimah Mohd Razif, and Abdul Karim Ali, “Issues on Restructuring of a Financing Facility in Malaysian Islamic Banks,” 2020. 85 Usmani, The Meanings of the Noble Qur’an, 2: 281. https://bisb.com/sites/default/files/Fatawy-Booklet.pdf https://assabeel.net/article/2014/6/18/2-قضايا-جدلية-في-التمويل-الإسلامي-موجهة-للباحثين/ https://assabeel.net/article/2014/6/18/2-قضايا-جدلية-في-التمويل-الإسلامي-موجهة-للباحثين/