Is The Statutory Standard Sale And Purchase of Housing Accommodation Agreement (Schedules G, H, I and J) In Peninsular Malaysia Compatible With Islamic Law? Part 3

Thus, it is opined, pursuant to the previous explanation, the said agreement (Schedules G, H, I and J) is not acceptable to Islamic Law and void. According to majority of the jurists, contract (aqad) which does not fulfill the pillars (rukun) and conditions (syarat) of the contract is void (Wahbah al-Zuhayli, 1989, vol. 4, pp. 235, 237, 423 and 425) and (Abdul Halim Muhammad, n.d, p. 134). For instance, in the sale and purchase of houses which the subject-mater is later abandoned, the subject-matter is absence at the time for delivery (gharar al-fahish) and secondly the vendor developer is being unqualified party to the contract. Further, usually in the abandoned housing projects, there is no guarantee the purchasers could get the duly completed houses as the developer is financially incapable of resuming the construction. The purchasers also have to face all the troubles and incur costs due to the abandonment (gharar al-fahish). Hence, these catastrophes (gharar) surely tarnish the pillar (rukun) and condition (syarat) for a valid contract. In short, there are inherent elements of gharar or possibilities (ihtimal) for the commission of gharar in the said agreement, to the detriment of the public purchasers, it is submitted.


To recapitulate, the said agreement is in conflict with the Quranic verses, the hadith of the Prophet Muhammad (PBUH), qiyas, istihsan, the maqasid shariah, the maslahah ammah and the maslahah al-mursalah (public interest) itself. In abandoned housing projects, the protection of wealth being one of the major necessity of mankind (i.e purchased housing property) is not there viz absence, despite certain payments have been made by the purchasers, especially on the promised date for delivery, thus in contravention of the requirement of maqasid shariah (Ibnu Qayyim al-Jayziah. 1977. Abi Bakar & Abdul Hamid (ed.), p. 239).


It is opined that unless and until certain terms and provisions which are capable of avoiding the gharar (abandonment and the ensuing losses, sufferings and grievances), especially gharar al-fahish, are provided in the said agreement, Act 118 (Housing Development (Control and Licensing) Act 1966, SDBA 1974 and UBBL 1984, the said agreement per se, with due respect, is not acceptable to nor recognized by Islamic Law. It is opined that, even though there exists gharar al-fahish in the said agreement, the said agreement, can still be valid if the elements which can cause gharar al-fahish are eliminated or substantially reduced to only become gharar al-yasir (minor/insignificant gharar), if the current system of housing delivery is replaced by a better system of housing delivery such as by implementing the ‘full build then sell system’ or imposing a requirement that the vendor developers have to obtain housing development insurance to guard against any occurrence of abandonment of housing projects and meeting the costs of the rehabilitation, if abandonment is inevitable as well as to meet the losses of the purchasers as the direct consequences of the abandonment and defaults of the vendor developer in the course of development of their purported housing projects.


The suggested provisions and terms of agreement and the necessary actions by regulatory bodies, which must be made, are to eliminate the possible occurrence of the gharar al-fahish (abandonment of housing project and ensuing grievances, the causes leading to it, losses, damages and sufferings).


To put it in a nutshell, it is opined and again it is reiterated that the acceptable agreement of sale and purchase of house in accordance with Islamic law is the agreement which can ensure that there is no possibility (ithimal) for the commission of gharar (abandonment and its ensuing grievances) especially gharar al-fahish, the rights and interests of the purchasers are fully protected, the subject-matter (the duly completed house) can be delivered on the time as promised in accordance with the terms and conditions of the agreement and the guarantee of the obtaining of the full title for the unit purchased.


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