Murabaha („Weiterverkauf mit Aufschlag“; von ribh, „Gewinn“): ist die häufigste Form der islamischen Fremdfinanzierung, bei der ein Kreditinstitut die zu finanzierende Handelsware (Commodities) erwirbt und sie dann mit einer Gewinnspanne (englisch Add-on, oder mark-up) an den islamischen Käufer weiterverkauft, der sie zu einem späteren Termin bezahlt. Der Add-on entspricht genau dem Kreditzins und der Tilgung. Etwa 75 % aller schari'a-konformen Verträge basieren auf dieser Konstruktion.

The lawsuit relates to a murabaha facility that Rasmala provided to Farlin in July 2017.

Under the facility, a sharia-compliant form of finance, Rasmala would advance funds to the seller and take ownership of the commodities being traded. Rasmala would then transfer that ownership to Farlin in exchange for the cost plus a mark-up.

Murabaha (Agreed profit margin sale with cash or deferred payment of price)¹⁾

i) Murabaha means a sale of goods by a person to another under an arrangement whereby the seller is obliged to disclose to the buyer the cost of goods sold either on cash basis or deferred payment basis and a margin of profit included in the sale price of goods agreed to be sold.²⁾

ii) Goods to be traded should be real, but not necessarily tangible goods. Credit documents cannot be the subject of Murabaha.³⁾

Tangible goods are products or items you can see, feel, and touch.⁴⁾

iii) Being a sale transaction, it is essential that the commodities which are the subject of sale in a Murabaha transaction, must be existing, owned by the seller and in his physical or constructive possession. Therefore, it is necessary that the seller must have assumed the risks of ownership before selling the commodities to the buyer/customer.⁵⁾

iv) Murabaha, like any other sale, requires an offer and acceptance which will include certainty of price, place of delivery, and date on which the price, if deferred, will be paid.⁶⁾

v) In a Murabaha transaction, the appointment of an agent, if any, the purchase of goods by or for and on behalf of the bank and the ultimate sale of such goods to the customer shall all be transactions independent of each other and shall be so separately documented. An agreement to sell, however, may embody all the aforesaid events and transactions and can be entered into at the time of inception of relationship. The agent would first purchase the commodity on behalf of his principal i.e. financier and take its possession as such. Thereafter, the client would purchase the commodity from the financier, through an offer and acceptance. According to Sharia it is sufficient in respect of the condition of ‘possession’ that the supplier from whom the bank has purchased the item, gives possession to the bank or its agent in such a manner that subject matter of the sale comes under the risk of the bank. In other words, the commodity will remain in the risk of the financer during the period of purchase of the commodity by the agent and its ultimate sale to the client (agent/buyer) and its possession by him.⁷⁾

vi) The invoice issued by the supplier will be in the name of the financier as the commodity would be purchased by an agent on behalf of such financier. It is preferable that the payment for such commodities should be made by the financier directly to the supplier.⁸⁾

vii) Once the sale transaction has been concluded, the selling price determined cannot be changed.⁹⁾

viii) It can be stipulated while entering into the agreement that in case of late payment or default by the client, he shall be liable to pay penalty calculated at percent per day or per annum that will go to the charity fund constituted by the bank. The amount of penalty cannot be taken to be a source of further return to the bank (the seller of the goods) but shall be used for charitable purposes including the projects intended to ameliorate economic conditions of the sections of the society possessing little or nothing i.e. needy people/peoples without means¹⁰⁾

ix) The banks can also approach competent courts for award of solatium which shall be determined by the Courts at their discretion, on the basis of direct and indirect costs incurred, other than opportunity cost. Also, security or collateral can be sold by the bank (seller) without intervention of the court.¹¹⁾

x) The buyer may be required to furnish security in the form of pledge, hypothecation, lien, mortgage or any other form of encumbrance on asset. However, the mortgagee or the charge-holder shall not derive any financial benefit from such security¹²⁾

xi) A Murabaha contract cannot be rolled over because the goods once sold by the bank become property of the client and, hence, cannot be resold to the same (or another) financial institution for the purpose of obtaining further credit. The bank can, however, extend the repayment date provided that such extension is not conditional upon an increase in the selling price of goods, originally agreed.¹³⁾

xii) Buy-back arrangement is prohibited. Therefore, commodities already owned by the client cannot become the subject of a Murabaha transaction between him and any financier. All Murabaha transactions must be based on the purchase of goods from third party(ies) by the bank for sale to the client.¹⁴⁾

xiii) The promissory note or bill of exchange or any evidence of indebtedness cannot be assigned or transferred on a price different from its face value.¹⁵⁾