عقد الكفالة في الشريعة الإسلامية والقانون المدني: دراسة مقارنة

Abstract

Kafalah is one of the contracts known in Islamic jurisprudence. Kafalah is included in a voluntary contract that will provide a reward to the guarantor for helping others in goodness. This principle is based on cooperation between individuals to facilitate their affairs, facilitate their interests, and reduce the difficulties they face. Kafalah is a process of upholding rights and facilitating transactions in the provision of debts, money, and the use of goods to calm the rights owner in loans or borrowed goods so that they can obtain their rights, protect their interests, and eliminate difficulties for the community. The problem in this study is how far kafalah can help principal debtors that given the large number of guarantee cases due to the failure of principal debtors to pay, when akad kafalah is abused, with the principal debtor intentionally not paying the debt and handing it over to the guarantor, resulting in disputes and conflicts between them because the guarantor has to pay the debt, leading to the case being brought to court. Information, data and documents obtained using two types of methodology, namely Library Studies and Interviews with key officers of contract of guarantee at Bank Islam Brunei Darussalam (BIBD), Tabung Amanah Islam Brunei (TAIB), Brunei Darussalam Civil Court and Law Firm. One of the suggested ways or alternatives is by using Kafalah bil-ujrah, which is a guarantee with payment of a fee to settle a financing problem. However, Kafalah bil-ujrah has some differences among scholars because it involves elements of riba (usury/interest). Therefore, Brunei Darussalam mostly uses takaful because it does not involve any individual but only money, or with asset collateral. Asset collateral and takaful are the solutions made in Brunei Darussalam, especially in banks for any retail financing. However, kafalah is still used in corporate financing.