Unfair terms in Islamic banking contracts: realizing Maqasid al-Shariah towards banking consumer protection in Malaysia
The use of unfair contract terms in Islamic banking contracts remains a serious problem in Malaysia. Most Islamic banking contracts are in standard form contracts, also known as ‘adhesion contracts’ which are predrafted by the party with strong bargaining power in the contract and contain terms th...
| Main Authors: | , |
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| Format: | Conference or Workshop Item |
| Language: | English |
| Published: |
2016
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| Subjects: | |
| Online Access: | http://irep.iium.edu.my/54111/ http://irep.iium.edu.my/54111/ http://irep.iium.edu.my/54111/1/54111_UNFAIR%20TERMS%20IN%20ISLAMIC%20BANKING%20CONTRACTS.pdf |
| Summary: | The use of unfair contract terms in Islamic banking contracts remains a serious problem in Malaysia. Most
Islamic banking contracts are in standard form contracts, also known as ‘adhesion contracts’ which are predrafted
by the party with strong bargaining power in the contract and contain terms that are potentially
unfair. These contracts are presented on a ‘take it or leave it’ basis and non-negotiable, leaving banking
consumers no realistic opportunity to bargain for more favourable terms, subsequently resulting in an unfair
transaction. Further, the unfair contract terms have greater implications on the realization of Maqasid al-
Shariah, as it does not comply with the principles of protecting public interests (maslahah), honesty,
trustworthy, financial transparency, prevent harm/hardship and al-‘adl wal-ihsan (justice with benevolence)
in the circulation of wealth in banking transactions. This paper aims to analyze various legal
documentations of Islamic banks in Malaysia in the light of Maqasid al-Shariah in order to propose a fair,
transparent and consumer-friendly banking contracts. This paper suggests that the unfair contract terms in
legal documentation of various Islamic banks and the inequality of bargaining power (ghubn) in banking
industry, which resulted in the rights of banking consumers being infringed, have failed to realize the
Maqasid al-Shariah. Thus, it justified the need to protect banking consumers from unfair contract terms as
well as sending a strong message to the bankers to do fair trading and transparency in dealings, such that
unfair terms will not be tolerated. This paper adopts a combination of theoretical and content analysis
methodology. |
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