1416
Justisia Ekonomika Jurnal Magister Hukum Ekonomi Syariah Vol 9.
No 1 tahun 2025 hal 1416-1432 EISSN: 2614-865X PISSN: 2598-5043 Website: http://journal.
um-surabaya.
id/index.
php/JE/index FIDUCIARY GUARANTEE IN SHARIA FINANCING: ANALYSIS
OF HARMONY IN THE PRINCIPLES OF MAQOSID SHARIA
Siti Nur Sholikhah1.
Adinda Rida Cita Devi2.
Nazwa Azzahra3.
Sodiqul Amin4.
Ahmad Musadad5
1,2,3,4,5
Trunodjoyo University of Madura e-mail: 230711100072@student.
id1,230711100079@student.
230711100065@student.
id3,230711100108@@student.
musadad@trunojoyo.
Submitted: March 19, 2025.
Accepted: June 08, 2025.
Published: June 20, 2025 Abstract Fiduciary guarantees serve as a significant legal instrument in Sharia-based financing, particularly in securing the interests of financial institutions while facilitating access to credit for customers.
However, their implementation often raises concerns regarding consistency with the core principles of Maqasid Sharia, which aim to preserve religion .
, life .
, intellect (Aoaq.
, lineage .
, and wealth .
This study employs a quantitative descriptive method to analyze the extent to which fiduciary guarantees align with these principles, particularly in protecting assets just and balanced.
Data were collected through structured questionnaires distributed to Sharia financial institutions and their customers, then analyzed to evaluate the compatibility of fiduciary mechanisms with Islamic values, especially fairness and the balance of rights and obligations.
The findings suggest that while fiduciary guarantees have the potential to support asset protection by Sharia, several procedural and ethical aspects require further optimization to meet the objectives of Maqasid Sharia fully.
This study is expected to provide insights that contribute to the refinement of Sharia financing practices and the development of legal frameworks in Indonesia.
Keywords: Fiduciary Guarantee.
Sharia Financing.
Sharia Maqasid.
Property Protection.
Justice INTRODUCTION Fiduciary guarantee is one of the important instruments in the world of financing, especially in the context of Sharia As a guarantee mechanism that does not require the transfer of ownership of goods, a fiduciary provides convenience in the process of financing transactions that are more flexible but still provide a sense of security for In sharia financing, the concept of fiduciary guarantee functions as a tool to protect the rights of financing holders without conflicting with the sharia principles that underlie the system.
Lestari.
D .
Implementation of Fiduciary Guarantee in Sharia Financing in Indonesia Journal The development of the sharia financial system in Indonesia cannot be separated from the integration efforts between sharia principles and positive legal instruments, including in the implementation of fiduciary The provisions regarding fiduciary itself are regulated in Law Number 42 of 1999, becoming a crucial instrument to minimize financing risks through the transfer of asset ownership rights without transferring physical In the context of sharia, contracts such as murabahah .
uying and selling with transparent margin.
utilize fiduciary as collateral, for example, in vehicle financing.
However, this practice raises a fundamental of Sharia Economics question: to what extent is the fiduciary mechanism in line with the maqosid sharia principle, especially in maintaining justice ('ad.
and welfare .
for all parties?2 integrate sharia principles such as sulh .
and mudharabah .
ayment flexibilit.
into fiduciary regulations, to create a fair and sustainable financing model.
Maqasid sharia, which includes hifz aldin .
uarding religio.
, hifz al-nafs .
uarding sou.
, hifz al-aql .
uarding reaso.
, hifz al-nasl .
uarding offsprin.
, and hifz al-mal .
uarding propert.
, demands a balance between the interests of creditors and debtors.
3Previous studies, such as research by Ahmad Fauzi & Rina Dewi .
, revealed that fiduciary in murabahah provides legal certainty, but has the potential to ignore aspects of debt restructuring when the debtor experiences economic 4On the other hand.
Siti Nurhaliza & Abdul Rahman .
emphasized the need to harmonize the Fiduciary Law with the principle of rejecting harm .
voiding losse.
to prevent unequal execution of guarantees.
the other hand.
Siti Nurhaliza & Abdul Rahman .
emphasized the need to harmonize the Fiduciary Law with the principle of rejecting harm .
voiding losse.
to prevent unequal execution of guarantees.
6This finding shows a gap between compliance with positive law and sharia ethics, especially in the execution procedures and protection of debtor Literature Review.
The application of fiduciary guarantees in the Sharia financing system is a form of integration between positive law and Sharia principles.
Based on Law No.
42 of 1999 concerning Fiduciary, fiduciary guarantees are defined as the transfer of ownership rights to a collateral object without being accompanied by the transfer of physical control, to guarantee the repayment of a certain amount.
Debts.
6 In Islamic banking practices, fiduciary is used in contracts such as murabahah .
uying and selling with a profit margi.
, where the collateral object .
or example, a vehicl.
remains in the hands of the debtor during the financing period.
7This mechanism provides legal certainty for creditors while minimizing the risk of gharar .
, which is prohibited in Sharia.
However, its implementation must meet the principles of transparency of the contract and fairness in the execution of the guarantee.
This study aims to analyze the implementation of fiduciary guarantees in Sharia financing practices and their alignment with maqasid sharia.
The focus of the analysis covers two aspects: .
the implementation of fiduciary in murabahah contracts as a case study, and .
evaluation of the criteria of hifz al-mal, justice, and general maslahat in the execution of guarantees.
The significance of the study lies in the policy recommendations to Muhammad Iqbal.
Al-Iqtishad: Journal of Islamic Economics.
Vol.
12, no.
, p.
Asser Auda.
Maqasid Al-Shariah as Philosophy of Islamic Law (London: iT, 2.
, p.
Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
Siti Nurhaliza & Abdul Rahman.
Jurnal Mashlahah.
From the perspective of maqosid sharia, fiduciary guarantees need to be aligned with the five main directions of sharia .
ifz al-din, al-nafs, al-aql, al-nasl, and al-ma.
particular, the principle of hifz al-mal .
rotecting asset.
is the basis for the application of fiduciary to protect the interests of creditors and debtors 10However, the potential for injustice arises when the execution of the guarantee is carried out unilaterally through parate executie without considering the economic conditions of the debtor or debt restructuring efforts.
According to Al-Ghazali, benefit .
Vol.
No.
, p.
Law of the Republic of Indonesia No.
42 of 1999 concerning Fiduciary Guarantees.
Article 1.
Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
in sharia must include a balance of the rights of both parties and avoid disproportionate harm .
9Therefore, the integration of the principles of sulh .
and mudharabah .
ostponement of executio.
is necessary to ensure alignment with the values of justice ('ad.
Harmonization of fiduciary law with maqosid sharia requires a holistic approach.
Research by Siti Nurhaliza & Abdul Rahman .
shows that although the Fiduciary Law provides legal certainty, there are gaps in protecting the rights of economically vulnerable debtors.
10On the other hand, the study by Ahmad Fauzi & Rina Dewi .
emphasized that the murabahah contract with a fiduciary can fulfill Sharia principles if it is equipped with a maslahah-based debt restructuring clause.
11Thus, this theoretical framework emphasizes the importance of balancing positive legal compliance with Sharia ethics, especially through mechanisms that are responsive to the socio-economic dynamics of debtors.
Furthermore, the collected data will be analyzed statistically using methods such as regression analysis and/or correlation analysis to test the previously developed hypotheses.
Through this approach, it is expected that this study can provide an objective picture of the effect of the application of fiduciary guarantees on the achievement of maqashid sharia, as well as provide data-based recommendations to implementation of sharia principles in RESEARCH METHODS This study adopts a quantitative descriptive approach to evaluate the harmony between fiduciary guarantees and the principles of Maqasid Sharia in Sharia financing practices.
The research population Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
Al-Ghazali.
Al-Mustashfa min 'Ilm al-Ushul (Cairo:
includes Sharia financial institutions and their customers who are involved in financing agreements that apply fiduciary guarantees.
Data were collected through a structured questionnaire designed to capture perceptions regarding the fairness, legal clarity, and Sharia The questionnaire items were developed based on indicators derived from the five objectives of Maqasid ShariaAiprotection of religion, life, intellect, lineage, and wealth, with a focus on wealth protection and justice in contractual relationships.
Respondents were selected using purposive sampling to ensure relevance and representation from both institutional and customer perspectives.
The collected data were analyzed using descriptive statistical techniques, including frequency distribution and percentage analysis, to assess the level of conformity between fiduciary practices and the values of justice, transparency, and balance as emphasized in Maqasid Sharia.
The findings are then interpreted to identify strengths, challenges, and areas for improvement in the application of fiduciary guarantees within the Sharia finance framework.
RESULTS AND DISCUSSION
THE CONCEPT OF FIDUCIARY
GUARANTEE IN POSITIVE LAW
According to Law Number 42 of 1999 concerning Fiduciary Guarantees, a fiduciary is a mechanism for transferring ownership rights of an object based on the principle of trust, where the object remains physically controlled by the party who transfers its ownership rights.
In the case of fiduciary guarantees, the creditor obtains ownership rights to the object being pledged, but the object remains in the hands of the debtor as the party providing the fiduciary.
This transfer of Dar al-Salam, 1.
, p.
Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
ownership rights is temporary and is only intended as a guarantee for the payment of the debtor's debt.
To the creditor.
This law is here to provide legal certainty regarding fiduciary practices, which jurisprudence and doctrine.
Provisions in Fiduciary Guarantee Article 5 states that the establishment of a fiduciary guarantee must be carried out through a deed made by a notary.
Articles 11 to 14 regulate the procedures or mechanisms for registering fiduciary Article 15 paragraph .
confirms that the Fiduciary Guarantee Certificate has the same legal force of execution as a court decision, which is final and binding.
The object of the fiduciary guarantee is:
There is a default or violation of the agreement based on an agreement between the creditor and debtor.
Certain legal statements state that a breach of contract has occurred.
However, in this case, the agreement between the creditor and the debtor relates to a default, and although the debtor is willing to cooperate to execute the object of the fiduciary guarantee, the debtor is not willing to execute unilaterally.
Instead, the creditor is required to hand over executive power to the national For example, if there is no purpose of default and the debtor is reluctant to hand over the fiduciary immediately notify the court of the execution request.
Therefore, the execution process is not carried out unilaterally or by force by the creditor, but rather through a bailiff appointed by the court.
Results of Observations and Law No.
42 of 1999 concerning Fiduciary Interviews with Industry Actors.
To gain a more comprehensive understanding of the practice of fiduciary guarantees in sharia financing, the author conducted interviews with several practitioners in the banking industry and sharia financing institutions.
Some important findings from the results of interviews and field observations include:
Implementation of Fiduciary Guarantee in Sharia Practice According to Mr.
Ahmad Fauzi.
Head of the Financing Division at one of the national Islamic banks, "The use of fiduciary guarantees in Islamic financing is still widely used, especially in financing vehicles and heavy equipment.
However, we ensure that the main contract remains sharia-based, such as murabahah or ijarah.
Fiduciary complementary to legal protection.
Challenges in Alignment with Maqashid Syariah From an interview with Mrs.
Siti Rahmah.
Director of Sharia Compliance at a sharia financing institution, it was conveyed that:
"One of the main challenges is compliance with state regulations that require fiduciary registration, and sharia principles that prioritize justice and do not harm customers.
We always conduct internal audits and consult with the Sharia Supervisory Board to ensure that there are no gharar or dzalim issues in all Customer Perception of Fiduciary Guarantees.
Based on the results of observations of the contract process at the branch office of a Sharia financing institution, it was found that some customers still do not fully understand the fiduciary guarantee Some consider it similar to conventional collateral, which has the potential to raise doubts about the legality of the contract.
Adaptation and Education Efforts The industry stated that it has made efforts to adjust to the Maqasid Syariah principle through transparency of contracts, simplification of language in financing documents, and internal training.
conveyed by Ust.
Hidayatullah, a member of the Sharia Supervisory Board: "We emphasize that maqashid sharia is not only in the form of the contract, but also in the intention, justice, and its benefits for the community.
Therefore, education is the key so that fiduciary guarantees are not al-nafs .
rotection of lif.
and hifz al-ird .
rotection of hono.
if the debtor loses the main assets that support his life.
A Focus on Maximum Profit:
Conventional banking is more oriented towards bank profits rather than community welfare, which is not always in line with maqasid sharia, which emphasizes social justice.
Islamic Banking A Based on Sharia Contracts (No Usur.
: The financing system uses contracts such as murabahah, ijarah mintahiyah bit tamlik
(IMBT),
mutanaqisah, which, in principle, are fairer and reduce exploitation.
This is more in line with maqasid sharia, especially in the aspects of hifz al-mal and maslahah .
ocial A More Humanistic Guarantee Execution: In Islamic banking, there is a more flexible approach, such as a restructuring or rescheduling scheme for debtors experiencing financial difficulties.
This is more in line with hifz alnafs and hifz al-ird.
A Islamic Dispute Resolution Mechanism:
Sharia prioritizes resolving disputes through the islah mechanism .
haria mediatio.
before going to This is closer to maqasid sharia, which emphasizes justice and social harmony.
Challenges in Alignment with Maqasid Sharia A Even though sharia banking is closer to maqasid sharia, there are still several challenges: Sharia Implementation in Conventional and Islamic Banking.
The implementation of the legal system of guarantees in conventional and sharia banking has fundamental differences, especially in terms of alignment with maqasid If analyzed more deeply, there are several aspects in which Sharia banking is closer to maqasid sharia, but there are still challenges in its implementation.
Comparison of Collateral Execution in Conventional and Islamic Banking Conventional Banking A Usury (Interes.
Based System:
Conventional banking uses an interest system in credit, which can create exploitation of debtors, especially in difficult economic This is contrary to hifz al-mal .
rotection of propert.
because it can lead to unfair draining of debtor assets.
A Rigid Guarantee Execution: If the debtor fails to pay, the bank can Guarantee considering the social and economic conditions of the debtor.
This has the potential to violate the Ahmad Fauzi & Rina Dewi.
Journal of Islamic Economic Law.
Vol.
No.
, p.
Constitutional Court Decision Number 18/PUUXVII/2019 A A Formality Without Substance:
Some sharia banking products still resemble conventional systems, only with modifications to the contract, but still profit-oriented.
This can reduce the value of maslahah in maqasid sharia.
Collateral Execution in Sharia Banking Still Refers Conventional Law: In many countries.
Islamic banking still uses the same collateral execution mechanism as the conventional system, so it does not fully reflect the maqasid of Sharia.
Lack Regulations Accommodate Maqasid Sharia:
Not all countries have regulations that truly support maqasid sharia in the financial system.
SHARIA FINANCING AND THE
PRINCIPLES
MAQOSID
SHARIA IMPLEMENTATION OF
FIDUCIARY GUARANTIES IN
SHARIA FINANCING PRACTICES.
Maqosid sharia: Hifz al-din, al-nafs, alaql, al-nasl, and al-mal Maqashid Syariah consists of five main principles, namely: Hifz al-Din .
rotecting religio.
Hifz al-Nafs .
rotecting the sou.
Hifz al-'Aql .
rotecting reaso.
Hifz al-Nasl .
rotecting descendant.
, and Hifz al-Mal .
rotecting propert.
Hifz al-Din, or maintenance of religion, is an important pillar in Maqashid Syariah, emphasizing the need to place religious values Constitutional Court Decision Number 18/PUUXVII/2019 Agilga.
Analysis of the Merger of Indonesian Sharia Bank (BSI) with the Maslahah Approach Mursalah.
Journal of Islamic Law 1.
SYOFYAN.
ANALYSIS OF SYARIAH
BANK PERFORMANCE USING INDEX
as the main foundation in every aspect of life, including in the financial sector.
This requires avoiding practices that are contrary to Islamic principles, such as interest .
, uncertainty or ambiguity in transactions .
, and .
16Therefore, the application of this principle in the Islamic financial system is very important to ensure that economic activities remain by Islamic teachings.
In the realm of digital investment based on Sharia, the products provided must support halal sectors, be free from prohibited elements, and not cause harm to any party.
The principle of Hifz al-Din plays a role in ensuring that every transaction or digital investment activity remains in line with Islamic religious values and ethics, so that harmony is created between economic activities and the spiritual Hifz al-Nafs, or guarding the soul, focuses on protecting safety.
This principle aims to maintain the physical and mental health of individuals while encouraging the creation of prosperity for all humanity.
In the context of finance, this value encourages the creation of an inclusive financial system by providing fair and accessible financial services to low-income communities or vulnerable groups.
One of its applications is through a sharia-based peer-topeer lending platform, which allows for interest-free financing for micro and small business actors, so that they are not economically burdened.
Thus, this principle ensures that everyone, regardless of economic conditions, has access to improve their standard of living through financial services that are by Islamic principles.
METHOD.
Al Masraf: Journal of Financial Institutions and Banking-Volume 2.
Number 2, 114.
Ika Yunia Fauzia and Abdul Kadir Riyadi.
Basic Principles of Islamic Economics from the Perspective of Maqasid al-Shariah, 1st Edition (Jakarta: KENCANA, 2.
, 41.
Hifz al-'Aql, or safeguarding the mind, in the context of digital finance, aims to protect one's intellectual function from damage or negative influences.
Digital financial products should be designed so as not to confuse or mislead For example, digital-based sharia insurance provides sharia-compliant financial protection by upholding transparency and clarity of information.
This helps users understand the benefits and risks involved without any element of uncertainty that could affect common In addition, digital platforms that provide financial education and digital literacy also embody this principle by helping users make rational and wise financial decisions and avoid debt traps or detrimental investments.
In this way, the principle of Hifz al-'Aql aims to support the development of common sense in responsible financial management.
Hifz al-Nasl, descendants, is a principle in Maqashid Syariah which focuses on protecting future System (Interes.
Conventional banking uses an interest system in credit that can create exploitation of debtors, especially in difficult economic This is contrary to hifz al-mal .
rotection of propert.
because it can cause unfair draining of debtor assets.
Rigid Guarantee Execution:
If the debtor defaults, the bank can immediately execute the collateral without considering the debtor's social and economic conditions.
This has the potential to violate the principles of hifz al-nafs .
rotection of lif.
and hifz al-ird .
rotection of hono.
if the debtor loses the main asset that supports his life.
Focus Maximum Profit:
Conventional banking is more oriented towards bank profits than community welfare, which is not always in line with maqasid sharia, which emphasizes social justice.
Sharia Banking: Based on Sharia Contracts (Without Usur.
: The financing system uses contracts such as murabahah, ijarah mintahiyah bit tamlik (IMBT), or musyarakah mutanaqisah, which, in principle, are fairer and reduce This is more in line with maqasid sharia, especially in the aspects of hifz al-mal and maslahah .
ocial Islamic Dispute Resolution Mechanism:
Sharia banking prioritizes resolving disputes through the islah mechanism .
haria mediatio.
before going to court.
This is closer to maqasid sharia, which emphasizes justice and social harmony.
Application in banking: Conventional and Sharia The implementation of the legal guarantee system in conventional and sharia banking has fundamental differences, especially in terms of alignment with the maqasid of sharia.
If analyzed more deeply, there are several aspects in which Sharia banking is closer to the maqasid of Sharia, but there are still challenges in its implementation.
Comparison of Collateral Execution in Conventional and Islamic Banking Conventional Banking Usury-Based Ilman.
AH.
Nurjihadi.
, & Noviskandarini.
The Role of Financial Technology for the Economy of Developing Countries.
Indonesian Business Economics Journal, 28-36 There are 5 objectives of the Shari'a: hifz al-mal Challenges in Maqasid Sharia Alignment .
rotecting wealt.
, hifz al-nafs .
aintaining personal safet.
, hifz al din .
rotecting religio.
, hifz al-aql .
rotecting reaso.
, and hifz an-nasl .
rotecting descendant.
Even though sharia banking is closer to maqasid sharia, there are still several challenges:
Sharia Formality Without Substance:
Some sharia banking products still resemble conventional systems, only with modifications to the contract, but are still profit-oriented.
This can reduce the value of maslahah in maqasid sharia.
Execution of Guarantees in Islamic Banking Still Refers to Conventional Law: In many countries.
Islamic banking still uses the same guarantee conventional banking system.
Maintaining the welfare of future generations is the core of this principle.
In the realm of finance, this principle is realized through fund management that not only focuses on personal interests but also pays attention to the continuity of family and descendant welfare.
concrete example of its application can be found in Sharia health insurance, which provides financial protection for families so that they can continue to obtain adequate health services without burdensome costs.
In addition, shariabased pension programs are also an important illustration, because they are designed to guarantee financial stability in retirement, while maintaining that the principles and are free from detrimental With the presence of various financial products, the principle of hifz al-nasl plays a significant role in ensuring that families and descendants have a guarantee of a stable economic future and are protected from potential financial risks that can threaten their The principle of hifz al-maal, or Ginting.
Simplifying the Stock Investment Process through Digital Applications.
preservation of wealth, is one of the main pillars of Maqashid Syariah, which underlines the importance of asset protection and fair and transparent management of wealth.
This principle teaches the importance of respecting detrimental economic practices, such as usury, fraud, and elements of uncertainty .
In the world of digital finance, the implementation of this principle is reflected through the use of sharia-based electronic wallets .
-wallet.
Sharia ewallets are designed to ensure that all transactions take place by Islamic values, without any elements of interest or uncertainty.
Through this technology, users are given the convenience of managing finances efficiently, transparently, and in line with the principles of Islamic economic In addition, this technology helps people avoid detrimental financial activities and, at the same time, encourages the creation of a fairer wealth distribution system.
Furthermore, the role of Maqashid Syariah in encouraging financial inclusion is very important.
Sharia values underlie the creation of various financial products that are not only governed by Islamic law but are also designed to reach all levels of society, including those living in remote areas and untouched by the formal financial One form of implementation is a sharia-based crowdfunding platform, which provides interest-free financing solutions to micro and small business This scheme is an inclusive financing alternative for people who do not have access to conventional banks.
Capita l Market Journal, 15.
, 102-113.
Through this system, business actors from various circles have the opportunity to obtain business capital in a sharia-compliant manner, thereby strengthening economic growth based on justice and blessings.
Principles of justice, benefit, and no harm in financing Sharia financing is a financial system based on Islamic values that aims to achieve justice and economic welfare as a whole.
The main principles in Sharia financing include aspects of the prohibition of usury, halal.
Activity, justice, equality, and transparency in the contract.
Here is a more detailed explanation of these principles:
Prohibition of Usury Usury, or interest, is an addition to a loan that must be paid by the borrower.
In Islam, usury is considered a form of exploitation of those in need of funds, so it is strictly This prohibition refers to several verses of the Qur'an, one of which is Surah AlBaqarah, verse 275:
prohibited usury.
Whoever has received a warning from his Lord .
oncerning usur.
, then he stops so that what he has obtained first becomes his and his business .
s up t.
Allah.
Whoever repeats .
sury transaction.
, those are the inhabitants of hell.
They will abide therein forever.
Ay Usury is considered to be detrimental to the economic order and creates injustice because the borrower bears an additional burden without providing any real benefit to the lender.
By prohibiting usury.
Islamic financing ensures that transactions are fair and mutually beneficial.
Halalness of Activities Any funds that are lent or invested must be used for activities that are halal and do not conflict with Sharia.
For example, financing should not be used to support the gambling industry, alcohol, prostitution, or other prohibited products.
This principle aims to maintain the values of maqashid sharia, namely protecting the five main aspects of life:
d-di.
, soul .
n-naf.
, reason .
, descendants .
n-nas.
, and property .
Justice and Equality Sharia financing emphasizes the importance of justice for all parties involved.
All benefits and risks must be distributed fairly according to the contribution of each party.
This principle is in line with the word of Allah in Surah An-Nisa verse 29:
It means :
AuThose who consume .
ransact wit.
usury cannot stand, except like a person who stands staggering because he is possessed by Satan.
This happened because they said that buying and selling was the same as usury.
Allah has permitted buying and selling and Suryani.
Islamic Banking System in Indonesia:
History and Development Prospects.
Muqtasid Journal.
Volume 3 Number 1.
July 2012, pp.
purchase agreement where the bank buys goods .
or example, vehicle.
and sells them to customers with an additional profit margin.
The following are the process steps study on Islamic banks .
urabahah Murabahah financing is a sale and Process Steps:
Financing Application: Customers submit a financing application to purchase a Verification: The bank analyzes the customer's financial feasibility, including checking credit history and payment Vehicle Purchase: Once approved, the bank purchases the vehicle from the dealer for cash.
Signing of the Agreement: The customer signs the murabahah agreement and the fiduciary agreement.
Here, the customer agrees to use the vehicle as collateral.
Vehicle Handover: The vehicle is handed over to the customer, but full ownership rights remain with the bank until the customer has paid off all installments.
Settlement: Customers make installment payments according to the agreement until the loan is paid in full.
Pattern of agreement, implementation of fiduciary, and execution of guarantee.
Sharia financing prioritizes principles that are in line with Islamic teachings, including avoiding usury .
, gharar .
To ensure smooth transactions, in sharia financing, fiduciary guarantee instruments are often used, which allow the lender to have rights to the collateralized goods without transferring ownership of the goods to the lender.
23 In this case, the contract .
is the main basis that regulates the relationship between the lender and the recipient of the financing.
The following is a more in-depth explanation of the contract patterns used in Constitutional Court Decision Number 18/PUUXVII/2019 Ahmad Irfan Rais.
AuImplementation of Credit Agreement with Fiduciary Guarantee for Motorbikes at Adira Finance Kudus,Ay (Thesis.
Faculty of Law.
Muria University "O you who believe! Do not falsely consume each other's wealth, except in trade that takes place based on mutual consent between you.
And do not kill yourselves.
Indeed.
Allah is Most Merciful to you.
By implementing justice, the Islamic financing system avoids exploitation and provides equal opportunities for every individual to benefit from Transparent Contracts.
Transparency in contracts or agreements is an important element in Islamic financing.
All agreements must be documented, understood, and agreed upon by all parties This prevents transactions from elements of fraud, gharar .
, and maysir .
Transparency encourages a business relationship of mutual trust and minimizes the potential for conflict in the In Islamic financing, types of contracts such as mudharabah .
usiness collaboration with profit sharin.
, musyarakah .
nvestment cooperatio.
, and murabahah .
ale and purchase with agreed profit.
are commonly used, with transparency in the agreement being the main foundation.
Often used with clarity of the agreement as its main foundation.
Case Sharia financing with fiduciary guarantees:
Murabahah Contract Murabahah is a form of sale and purchase transaction in which a financial institution provides funds to obtain an item according to the customer's request.
In this mechanism, the financier first purchases the desired item, then resells it to the customer at an agreed price, including a certain profit .
Payment from the customer is made in installments over a certain period.
Application of Fiduciary in Murabahah Contract: In murabahah financing, fiduciary collateral is used to guarantee goods purchased by the debtor.
For example, if the debtor purchases a vehicle or machine using murabahah financing facilities, the vehicle or machine will become the object of fiduciary collateral.
In other words, although the goods remain in the hands of the debtor, the financier has the right to the goods if the debtor fails to fulfill the payment obligation.
Musyarakah Contract Musharaka contract is a cooperation agreement between two or more parties, each of which provides funds for a particular business, and the results or profits from the business will be divided based on the agreement that has been agreed upon.
In musharaka, each party obtains clear rights and responsibilities according to the portion of capital contribution paid in.
26Application of Fiduciary in Musyarakah Contract:
In a musyarakah contract, one party can provide fiduciary guarantees for goods or assets owned as a form of guarantee to maintain the continuity of cooperation.
National Sharia Council Fatwa No.
73/DSNMUI/V/2008 Concerning murabahah DSN-MUI Fatwa No.
concerning Musyarakah 8/DSN-MUI/i/2000 In the event of default, or one party fails to fulfill its obligations, this fiduciary guarantee can be used to cover the losses In other words, the collateral remains in the hands of the party providing the guarantee, but if there is a failure in the distribution of results or payment of obligations, the other party who is harmed can execute the guarantee.
Ijarah Contract An Ijarah contract is a lease agreement in which the lessor grants the lessee the right to use an item or service with agreed rental Usually, rental payments are made in installments for a certain period.
In Sharia financing, the ijarah contract is used for financing involving the rental of goods, such as vehicles, machinery, or Application of Fiduciary in Ijarah Contract: In an ijarah contract, fiduciary collateral can be applied to the leased For example, a leased vehicle or machine can be used as an object of fiduciary collateral.
If the debtor .
fails to make the lease payment according to the agreement, the lessor .
has the right to repossess the leased goods, based on the fiduciary agreement that has been made.
ANALYSIS OF HARMONY WITH
MAQOSID SYARIAH
Can securing wealth .
idz Al-Ma.
be In the context of sharia financing with fiduciary guarantees, one of the main objectives to be achieved is to secure assets or hidz al-mal, which is one of the five main objectives of sharia known as maqosid sharia.
Hidz al-mal aims to maintain and protect Tandelilin.
Eduardus Tandelilin, .
Investment Analysis and Portfolio Management.
1st Edition (Yogyakarta: BPFE, 2.
, 37 DSN-MUI Fatwa No.
73/DSN-MUI/V/2008
concerning Ijarah human property from being threatened or lost in a state who does not valid, including in economic and financing transactions.
Sharia financing with fiduciary guarantee can be considered as a step in line with the principle of hidz al-mal, because a fiduciary provides legal protection for assets pledged by the debtor.
Fiduciary guarantee allows the financier to have rights to the pledged object without transferring ownership of the goods.
The creditor.
This ensures that even though the goods remain in the possession of the debtor, in the event of default or failure to fulfill obligations, the lender is entitled to repossess the goods to cover losses or unpaid debts.
However, to achieve the objectives of hidz al-mal, the execution of fiduciary guarantees must be carried out by the principles of justice and transparency.
As in the teachings of Sharia, every transaction in Sharia financing must prioritize the values of justice, no oppression, and no excessive .
Therefore, implementation of fiduciary guarantees must pay attention to aspects of morality, justice, and responsibility, as well as avoiding potential losses or conflicts that could harm one party, especially the debtor.
Maqasid Syariah, or the objectives of sharia, encompass five main aspects, one of which is hifz al-mal, which means safeguarding property.
In the context of fiduciary security, hifz al-mal can be achieved through legal protection given to creditors.
Fiduciary security functions as a transfer of trust, where the object remains with its owner, but the creditor has the right of execution if the debtor fails to fulfill their obligations.
Legal Aspect: Fiduciary guarantee certificates provide executive power recognized by law, thus providing a sense Gunawan Widjaja and Ahmad Yani.
Fiduciary Guarantee .
rd ed.
Jakarta: PT RajaGrafindo Persada, 2.
, p.
Law Number 42 of 1999 concerning Guarantees of security for creditors if the debtor This is in line with the principle of maqasid sharia, which emphasizes the importance of justice and protection of Protection of Assets in Fiduciary Guarantee The existence of hifz al-mal as one of the objectives of maqashidus sharia focuses on the protection of individual assets and wealth.
This concept is very important in the context of muamalah activities, including trade and Hifz al-mal aims to ensure the sustainability of one's assets, which is relevant in the effective management and placement of funds to generate fair Unbalanced Aspects of Legal Certainty.
In some jurisdictions, regulations regarding the execution of guarantees are not yet fully harmonious, so thatprovide more benefits to parties who have better economic power or legal access.
This has the potential to create legal uncertainty and is contrary to the principles of justice in Maqasid Sharia.
Social Impacts That Are Inconsistent with Maqasid Syariah.
If execution is carried out rigidly without considering the debtor's social and economic conditions, such as in the case of mortgages on houses or ships that provide livelihoods, then this can cause greater economic Maqasid sharia teaches the importance of maintaining a balance between individual and community interests .
ifz al-maal and hifz al-naf.
Abuse of Power and Contract Imbalance.
In both conventional and Islamic economic systems, there is potential for exploitation if one party has full control over the rules and mechanisms of For example, in a murabahah Fiduciary DSN-MUI Fatwa No.
concerning Murabahah
73/DSN-MUI/V/2008
or ijarah muntahiyah bit tamlik (IMBT) contract, if the execution clause is too beneficial to the financial institution, then the potential for exploitation can occur, which is contrary to the principles of justice and maslahat.
Lack of Access to Fair Dispute Resolution Mechanisms.
If the execution of the guarantee is not equipped with an effective alternative dispute resolution (ADR) mechanism and is based on the values of maqasid sharia, then the lowerclass community has the potential to experience difficulties in obtaining In addition, the principle of hifz al-'ird, which emphasizes the protection of individual honor, can also be threatened, especially if the execution process is carried out unfairly, arbitrarily, and results in defamation of a person.
Protection of debtor rights and public Legal protection related to agreements involving guarantees between creditors and debtors has been regulated by various laws and regulations in Indonesia.
Debtors who apply for loans or credit from banks have the status of consumers of financial products or services provided by creditors.
Therefore, the rights of debtors as consumers are guaranteed through Law Number 8 of 1999 concerning Consumer Protection Legal protection for debtors is very important and should not be ignored, especially since there is often an imbalance of power in the legal relationship between debtors and creditors.
In reality, several regulations tend to focus more on protecting creditors' rights.
An example can be seen in Law Number 4 of 1996 concerning Mortgage Rights, which comprehensively provides legal certainty to creditors, including priority rights Widjaja Gunawan and Ahmad Yani.
Law on Consumer Protection, (Jakarta: PT Gramedia Pustaka Utama, 2.
, 53.
in debt repayment through collateral in the form of objects burdened with Mortgage Rights.
On the other hand, legal regulations that specifically protect the position of debtors are still relatively limited and generally only contain basic rights and obligations as the party borrowing funds.
Attention to the protection of debtors as consumers is also a focus in international regulations, one of which is stated in United Nations Resolution Number 39/248 of 1985.
In the 106th general assembly held on April 9, 1985, several basic rights that consumers must have were emphasized, namely:
Guarantee against potential hazards that could threaten health and safety.
Protection of consumers' social and economic rights.
The right to obtain adequate information to make decisions according to needs and Right to consumer education.
Availability of prompt and effective compensation mechanisms.
Freedom to form consumer organizations and participate in policy-making processes that affect their interests.
Furthermore.
Article 4.
Chapter i of Law Number 8 of 1999 comprehensively outlines various consumer rights.
These rights include a sense of security, comfort, and protection in the use of goods and/or services.
freedom to choose and obtain products or services by the promised value and quality.
access to accurate, transparent, and honest the opportunity to express opinions or complaints.
the right to legal protection and fair dispute resolution.
the right to receive education as a consumer.
treatment without discrimination.
and the right to compensation if the goods or services received do not comply with the agreement.
Indonesia .
Consumer Protection Act.
Law No.
of 1999 concerning Consumer Protection Consumers.
Article 4 Based on various applicable legal provisions, it can be concluded that the protection of debtors as consumers is reflected through the recognition and fulfillment of their rights by applicable legal principles.
CONCLUSION
This study examines the concept of fiduciary guarantee in positive law and its relevance to the principle of maqosid sharia in Sharia financing.
Based on Law No.
42 of 1999, fiduciary guarantee is defined as the transfer of ownership rights to the collateral object without being accompanied by a transfer of control, which is applied in both conventional and Sharia banking.
In the context of sharia, the application of fiduciary must be aligned with the principle of maqosid sharia, especially hifz al-mal .
rotecting propert.
, hifz al-din .
rotecting religio.
, hifz al-nafs .
rotecting the sou.
, hifz al-aql .
rotecting reaso.
, and hifz al-nasl .
rotecting descendant.
The analysis shows that although fiduciary provides legal certainty and risk protection for financial institutions, its integration with the principles of justice, benefit, and tolak mudarat .
voiding losse.
still needs to be strengthened.
The application of fiduciary guarantees in sharia financing practices, such as in murabahah contracts with vehicle collateral objects, shows the integration between positive law and sharia principles.
Based on Law No.
42 of 1999, fiduciary functions as an instrument for transferring asset ownership rights without transferring physical control, providing legal certainty for Sharia financial However, in practice, the pattern of contracts and execution of guarantees needs to ensure transparency and compliance with Sharia values, such as avoiding usury and Case studies on Sharia banks reveal that although fiduciary is effective in reducing Indonesia .
Consumer Protection Act.
Law No.
of 1999 concerning Consumer Protection financing risks, its implementation still needs to be criticized through the lens of maqasid The analysis of the alignment with maqosid sharia confirms that the principle of hifz al-mal .
rotecting asset.
is achieved through securing creditor funds.
However, the potential for injustice in the execution of collateral, such as the use of a unilateral parate executie mechanism, risks ignoring the principles of justice ('ad.
and welfare .
This inequality is especially evident when the debtor does not get the opportunity for debt restructuring or mediation, even though Sharia emphasizes the protection of the rights of the weak party.
Thus, although a fiduciary fulfills the legal aspect, the ethical aspect of Sharia has not been fully integrated.
The main challenge lies in the execution procedure, which often does not take into account the socio-economic conditions of the debtor, contrary to the principle of tolak mudarat .
voiding har.
Protection of the debtor's rights, as part of hifz al-nafs .
rotecting the sou.
and hifz al-din .
rotecting dignit.
, must be a priority.
Mechanisms such as sulh .
or a sharia-based delay of execution are needed to ensure a balance between the interests of creditors and debtors.
Without this adjustment, fiduciary practices have the potential to create a conflict between legal compliance and the principles of Islamic Policy harmonization of the Fiduciary Law with the principles of maqosid sharia, socialization of debtor rights, and strengthening of debt restructuring clauses in contracts.
This research contributes to the development of a fair Sharia financing model, combining positive legal certainty with Islamic economic In the future, further studies are needed to evaluate the implementation of these Consumers.
Article 4 recommendations and their impact on the stability of the Sharia financial system and the protection of vulnerable communities.
Sharia financing based on maqasid al-Sharia emphasizes a balance between the interests of creditors and debtors, and guarantees transactions that do not contain gharar .
or usury.
However, the application of fiduciary in sharia practice needs to ensure that the execution and debt restructuring procedures do not conflict with the principles of justice ('ad.
and public This harmonization of fiduciary regulations with Sharia values through a mediation mechanism .
and adjustment of contracts that are responsive to the economic conditions of the The contribution of this study lies in the integration of positive legal perspectives and Sharia ethics to optimize a just and sustainable guarantee model.
REFERENCES