Rosly, Saiful Azhar (International Islamic University Malaysia Press, 2001)
This paper will argue that replacing riba' with al-bay' does not mean that the latter can imply any form of sale (al-bay') to justify Islamic legitimacy. Apart from the prohibition of uncertainties (gharar) in sale, the requirement of an equivalent countervalue (ciwa') must also be met. Risk (ghurm) and liability (iman) after sale and value-addition or effort (ikhtiyar) are the principal components of ciwa'. As such, any increase from sale must contain ciwa', otherwise riba' is implicated. In classical Islamic commercial contracts such as ijarah, salam and mudarabah, ciwa' is evident. However, the contracts of credit of al-murabahah or al-bay bithaman ajil are widely used by Islamic banking practitioners. To prove Islamic legitimacy, this contract must show that the financiers assume the risk of ownership in making the sale. It must also show evidence that the seller is liable to the option of defect (khiyar al ayb). The same holds for bay al-inah and bay al-dayn which are also widely used in Islamic money and capital markets in some Muslim countries.
