Document Type : Promotion Paper
Authors
1 PhD in Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology, Islamic Studies and Guidance, Imam Sadiq University, Tehran, Iran; Seminary Scholar at the Advanced (Kharij) Level and Researcher
2 PhD in Economics, Research Institute Hawzah and University, Qom, Iran
Abstract
1. Introduction and Objective
The adoption of the Usury-Free Banking Law in Iran in 1983 was a significant development in the attempt to align modern financial practices with Islamic jurisprudence. The central objective of this law was to eliminate riba (usury) from banking operations and to substitute it with contracts that are both Sharia-compliant and economically viable. Among these contracts, the partnership contract (ʿAqd al-Mushārakah) holds a distinguished position. Unlike transactional contracts such as murabaha or ijara, which in many cases resemble conventional lending instruments, the partnership contract is intended to embody the fundamental Islamic economic values of cooperation, mutual risk-sharing, and equitable distribution of profit and loss.
Despite these ambitions, more than four decades of practical experience demonstrate that the system, particularly in the field of partnership contracts, has not lived up to its expectations. Instead of fostering genuine cooperation between banks and clients, the contracts often reproduce the same dynamics as interest-based loans, leading to jurisprudential criticisms and practical inefficiencies. This divergence between the normative ideals of Islamic banking and the realities of its practice has created persistent doubts both within scholarly discourse and among the public, weakening trust in the credibility of usury-free banking.
The purpose of this article is twofold. First, it seeks to identify and analyze the jurisprudential and administrative challenges inherent in the current application of partnership contracts in Iran’s banking system. Second, it aims to propose a framework of principles—positive principles that should be actively implemented, and negative principles that should be carefully avoided—that can guide the redesign of these contracts in ways consistent with both Sharia and economic functionality. By systematically examining these challenges and principles, this study hopes to contribute to a clearer understanding of the gap between theory and practice in Islamic banking and to suggest pathways for meaningful reform.
2. Problem Statement
A close examination of the current implementation of partnership contracts reveals that they suffer from two broad categories of challenges: jurisprudential (fiqh-related) and administrative (operational).
Jurisprudential Challenges
The first set of problems arises from the legal and Sharia dimensions of the contract. Among the most prominent issues are:
- Predetermined settlement deadlines: By fixing a date for settlement regardless of actual profit or loss, the contract undermines the very essence of risk-sharing, which is supposed to be the hallmark of partnership.
- Mandatory compensation of damages and fines: Imposing conditions such as penalties for delays or obligations to cover losses effectively transforms the partnership into a debt-based transaction, resembling interest-bearing loans.
- Voluntary management of company assets by customers: In many cases, the bank delegates management entirely to the client, who may lack incentives to act in the best interest of both parties. This not only raises doubts about the authenticity of the partnership but also contradicts the principle of mutual oversight.
- Transformation of partnership into exchange contracts: By overloading contracts with additional clauses, banks often shift risks entirely onto the client, making the arrangement indistinguishable from a conventional lending contract.
These practices raise questions about the Sharia legitimacy of current contracts. They generate suspicion that, although labeled as partnerships, the contracts in practice preserve the logic of riba, thus violating the foundational principle of usury-free banking.
Administrative Challenges
The second set of challenges stems from practical difficulties in administering partnership contracts:
- Adverse selection: Banks face difficulties in distinguishing between reliable and unreliable clients, leading to the risk of allocating resources to projects with poor prospects.
- Monitoring and supervision costs: Genuine partnership requires ongoing oversight of the project, but the costs of such supervision are often prohibitive, discouraging banks from fully engaging in the contract’s spirit.
- Valuation of non-cash assets: Many projects involve contributions in the form of equipment, property, or intellectual capital. Accurately valuing such inputs remains a major obstacle, creating disputes over fair profit distribution.
- Information asymmetry: Clients often have more information about the viability of their projects than banks do, leading to mistrust and difficulties in profit calculation.
- Market risks and uncertainties: Fluctuations in economic conditions expose banks to additional risks, which they frequently attempt to mitigate through fixed-profit clauses, again undermining the principle of partnership.
- Increased operational costs: Compared to transactional contracts, partnership contracts are more complex, time-consuming, and expensive to administer, further discouraging banks from adopting them authentically.
Together, these jurisprudential and administrative challenges reveal why the current system falls short. Rather than facilitating genuine risk-sharing and equitable outcomes, partnership contracts are frequently reduced to formalities that mask conventional lending practices. This not only diminishes the practical effectiveness of Islamic banking but also erodes public trust by creating suspicion that usury has re-entered the system under another name.
3. Conclusion and Suggestions
The analysis above demonstrates that the redesign of partnership contracts is both necessary and urgent. Without structural reform, the usury-free banking system risks stagnation, formalism, and loss of credibility. To ensure that contracts genuinely reflect Islamic values and economic rationality, the article proposes a framework of positive and negative principles.
Positive Principles (Ijābī)
These are principles that must actively guide the formation and implementation of partnership contracts:
1. Economic justice: Ensuring that neither party is unfairly disadvantaged and that profits and losses are shared equitably.
2. Circulation of wealth: Preventing concentration of financial resources among elites and ensuring access to credit for broader segments of society.
3. Respect for the essence of contracts: Preserving the original nature of partnership contracts without transforming them into disguised loan agreements.
4. Recognition of individual contributions: Respecting the work, expertise, or resources contributed by each party, even if non-financial.
5. Profit follows capital: Distributing returns strictly in proportion to invested capital and agreed terms, preventing one party from extracting disproportionate gains.
6. Consideration of public interest (maṣlaḥa): Aligning banking practices with the broader welfare of the Islamic community, ensuring that contracts contribute to social and economic development.
7. Pre-loan credit assessment: Requiring rigorous evaluation of clients’ reliability and project viability before funds are allocated.
Negative Principles (Salbī)
These are pitfalls and prohibitions that must be avoided in redesigning contracts:
1. Prohibition of riba: Any clause that guarantees fixed returns irrespective of profit or loss must be excluded.
2. Avoidance of injustice: Contracts must not impose terms that systematically disadvantage one party, particularly clients.
3. Prohibition of gharar (uncertainty): Clauses that introduce ambiguity regarding profit, loss, or obligations must be avoided.
4. Prevention of harm: Neither party should impose conditions that cause undue damage to the other.
5. Prohibition of wrongful acquisition of wealth: Contracts must prevent unjust enrichment, ensuring that gains are tied to genuine contributions.
6. Avoidance of excessive hardship: Terms that create unbearable burdens for either party should be prohibited, and mechanisms for relief in cases of hardship must be included.
7. Avoidance of invalid conditions: Clauses that undermine the validity of the contract or contradict Sharia principles must be carefully excluded.
Suggestions for Implementation
To operationalize these principles, several practical steps can be suggested:
- Standardization of contracts: While preserving flexibility, banks should adopt standardized templates vetted by Sharia boards to ensure compliance.
- Creation of oversight institutions: Independent bodies could monitor implementation, ensuring that banks adhere to partnership principles rather than reverting to interest-like practices.
- Use of technology for monitoring: Digital platforms and fintech solutions could reduce supervision costs, making authentic partnerships more feasible.
- Specialization of banks: Certain banks could specialize in partnership-based financing, developing the expertise needed for accurate valuation and risk management.
- Education and training: Both bank employees and clients should be educated about the true nature of partnership, fostering a culture of trust and cooperation.
Final Remark
By grounding partnership contracts in these positive and negative principles, the usury-free banking system in Iran can move closer to its original mission: the creation of a financial order rooted in fairness, cooperation, and Sharia compliance. Such a redesign not only addresses the jurisprudential and administrative shortcomings of current practice but also strengthens public confidence in the system. Ultimately, the success of usury-free banking depends not on formal labels but on substantive adherence to the principles of justice, equity, and partnership that lie at the heart of Islamic economics.
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