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Saturday, September 24, 2011

Bai Istisna’ (Sale by Order)

Definition 

Istisna‘ means sale on order i.e. the sale of goods by way of ordering where the price is paid in advance or progressively but the assets are manufactured and delivered at a later specified/defined date.

In other words it is a contract where the commodity exchanged against price is delivered immediately or paid in instalments, whilst the commodity is to be being manufactured and delivered at a later specified/defined date.

Modus Operandi

ISTISNA‘ FINANCING (e.g. House Financing)

1. Housing Developer enters into a contract with Customer to construct residential properties.

2. Bank enters into Istisna‘ contract in the capacity of a seller to Customer who demand a purchase of a house. The Bank draws a parallel Istisna‘ contract in the capacity of a buyer with another party (Developer) to construct a house as agreed upon in the first contract. 

It should be noted here conceptually in Istisna‘ financing, it is not necessary to have the Bank and the Customer in the above described form of transaction. It can also be in the form where the Bank purchases the residential to be constructed directly from the vendor or through the Customer as the Bank‘s agent and subsequently the Bank sells the subject to the Customer on the basis of parallel Istisna‘.

Checklist 

1. Essential Elements
  • Buyer
  • Seller
  • Object of Contract / Merchandise
  • Price
  • Contract (Offer & Acceptance)
2. Necessary Conditions 

Buyer & Seller
  • Capable of accepting responsibilities.
  • Not restricted from dealing in business transaction.
  • Not forced to enter into a contract.
     Object of Contract / Merchandise
  • To be delivered according to the specification, otherwise the purchaser has the option to terminate the contract.
  • Raw materials must be provided by the manufacturer.
  • Cannot be a ribawi material.
       Price
  • Must be determined at the point of contract.
  • Must be specified in terms of currency.
       Contract (Offer & Acceptance)
  • To order a manufacturer to manufacture a specific commodity for the purchaser. If the manufacturer undertakes to manufacture the goods, the transaction of Istisna‘ comes into existence.
  • Must be done in a definite and decisive language.
  • Acceptance must be in consistent with the offer made by the seller.
  • Offer and acceptance must be made at the one and the same meeting.
3. Application
  • Financing to construct a house, fixed asset
  • Project financing, property financing, syndicated financing
Sources: Sources:  Islamic Banking Handbook, First Edition April 2010, Institut Bank-Bank Malaysia,pp. 63-64.

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