Keabsahan Akad Perbankan Syariah Dengan Pengikatan Jaminan Hak Tanggungan

Abstract

This research examines the problems of guaranteeing Mortgage Rights in Islamic Financing. This type of research is normative legal research, examined using a statutory approach, conceptually analyzed qualitatively. The results of the analysis carried out conclude that the validity of the Islamic Banking Contract with the Binding of Mortgage Guarantees based on Surah Al-Baqarah verse 283 shows that material guarantees are permitted. Whereas legally stated in the Fatwa of the Indonesian National Sharia Council number 25/DSN/MUI/III/2002 on al-Rahn which provides an explanation regarding the ijma' of the scholars that al-rahn contracts or debt guarantees are broadly permissible. The use of guarantees in Islamic banking contracts prioritizes the application of the ijtihad method but does not intend to override the original law but is based more on the principle of using the istihsan method. The virtue of the istihsan method is to realize the benefit and avoid the dangers. Mortgage has executive power, this power is equated with a court decision or known as the principle of parate execution, this is what makes the istihsan method more often used. When viewed further, the imposition of mortgage rights on Islamic banking contracts basically should not be equated with the imposition of mortgage rights on conventional banking, both should have different principles. If the installation of the Mortgage is to guarantee mudharib trust, then the Mortgage is declared valid. with the consequence that in the event of a default it is not immediately auctioned off, in other words the principle of parate execution is not necessarily carried out. Then the Mortgage if used as a guarantor for the return of capital of the shahibul maal becomes invalid and null and void by law. These two aspets can determine the validity of the sharia banking contract with the binding of the Mortgage guarantee.