Makalah Hukum Bisnis
A. Definition and Legal Basis Pawnshop
A. Definition and Legal Basis Pawnshop
According
to the language, lien (Al-Rahn) means al-Tsubut and al-Habs, the designation
and detention. In the book of `l-Akhyar kifayah (261), has explained that
rahn is terkurang or entangled. (Hendi, 2005:105)
Meanwhile,
according to the terms of Personality ', according to Ash-Shiddiqy Hasbi (1984,
86-87), rahn is the object holding the contract price for something that may be
acquired rights from her perfect payment. So, rahn can be interpreted in
terms of borrowing money to give assurance to those who lend.
According
to Civil Law section 1150, a lien is a right of a person who has obtained
accounts for a good move, which was submitted to him by one who owed money or
by someone else on him, and which give power to people who berpiutang it to
take the repayment of such articles to take precedence over any other
berpiutang people, with the exception of costs already incurred, to save after
the goods were pawned, and the costs which must take
precedence. (www.scribd.com / doc / 25,043,098 / Islamic pawnshop).
As
a basic guideline lien law is the word of Allah in Surat al-Baqara
283:
وإن كنتم على سفر ولم
تجدوا كاتبا فرهان مقبوضة فإن أمن بعضكم بعضا فليؤد الذي اؤتمن أمانته وليتق الله
ربه ولا تكتموا الشهادة ومنيكتمها فإنه آثم قلبه
It
means: “If you are on the way (and not in cash bermu'amalah) while you do not
get a writer, then let no dependents goods held (by the berpiutang). But
if some of you believe some of the others, then let's fulfill the mandate
entrusted (his debts) and let him fear Allah his Lord, and do not (the witness)
testament to hide. And whoever is hiding it, then surely he is a sinful
heart “.
And
in the hadith narrated by Ahmad, Bukhari, Nasa'i and Ibn Anas Majjah of He
said: “Prophet Muhammad merungguhkan armor to a Jew in Medina when he
mengutangkan grain from a Jew”.
From
the above hadith it is understood that Islam does not discriminate between
Muslims and non-Muslims in the field of Prophet. Thus, a Muslim is
obligated to pay its debts even to people who are not Muslims.
B. Summary History of Pawn Shops in Indonesia
Mortgage
institution was first established in Sukabumi, West Java, 1 April
1901. Company name is Pawn, by Wolf von Weterode as the first head of the
State Mortgage Brokers. (Hermawan, 2008:204) At the time, the pawnshop was
founded to help people from the shackles of moneylenders by giving money to the
law of mortgage loans. Pawnshop's name, and then used as the name of this
financial institution.
In
1901, Pawn Company changed its status into Bureau (Testament). Then, in
1928 the Company changed to the State and in 1969 converted back to the Company
Bureau (Testament). And in 1990 the status of a Public Corporation
(Housing), marked by the birth of PP 10/1990 on 10 April 1990 and PP 103 in
2000. At that time the Pawnshop is one of the State Owned Enterprises (SOEs) in the Ministry of Finance of the Republic of Indonesia. (General
Ary).
In
2003 established financial institutions according to the Islamic concept,
namely Sharia Pawnshops Pawn Services Unit with the name of Sharia. Sharia
Pawnshops are actually born originated from the presence of MUI fatwa dated
December 16, 2003 regarding the Bank's interest that, “For the existing office
/ network Shariah financial institutions and is easily reached, are not allowed
to perform transactions on the basis of the balculation of
interest . This fatwa issuance of Government Regulation No.
strengthen. 10 in 1990 which explained that the mission carried by the
pawnshop is to prevent the practice of usury, and the mission will not change
until the issuance of Government Regulation no. 103 of 2000 which served
as the cornerstone of business Pawnshop until now.
In
Operations, the concept refers to the use of Sharia Pawnshops new ways, namely
rationality, efficiency and effectiveness that is according to logical thinking
and judgment, able to carry out their duties properly and bring the results
that are aligned with the values of Islam and are in the Division
assisted Other business Pawnshop.
Until
recently, in 2010, Sharia Pawnshops expand so as to have 120 branches spread
all over Indonesia, namely in Medan, Padang, Jakarta, Bandung, Semarang,
Yogaykarta, Surakarta, Surabaya, Manado and Balikpapan.
In
addition to Sharia Pawnshops, the players in this business is providing
mortgage banking Shari'ah Shari'ah, or the so-called rahn as an alternative to
their service. Until now, few players that offer Shariah Banking Pawn Bank
Syariah Mandiri Sharia is, Bank Muamalat Indonesia, Bank Danamon, and
others.
C. Pillars and Conditions of
Pawn
Pledge or a loan secured by having several pillars, including:
- Agreement consent
and Kabul, as someone said, “I mortgaged my bike is priced at two
million” and the other one replied, “I accept pawning your bike is worth
two million” or bias also done other than with words, such a letter, sign
or the other.
- Aqid, namely the
mortgage (rahin) and who received the pledge (murtahin). The
requirement for an expert tasharuf berakad is, that is able to spend
treasure and in this understanding of issues relating to the lien.
- Goods used as
collateral (borg). The requirement for the objects used as collateral
refers to the extent that goods are not damaged before the promise of debt
to be paid. In the book of al-Akhyar kifayah (263) also explained
that the Prophet SAW said: “any gnods which may be used as a pawn traded
(borg). Meanwhile, according to Ahmad ibn Hijazi, that which can be used
as collateral in mortgage issues that are of three kinds, namely:
a. Testimony.
b. Pawning goods.
c. Dependents of goods
- There is a debt, state debt has remained required.
D. Benefits decision Pawn
Goods
In
making the benefits of the items pawned the scholars 'different opinions,
including Jumhur fuqaha' and Ahmad.
Jumhur
fuqaha 'murtahin argue that benefits should not take a pledge the goods, though
rahin allow it, because this includes debt that can benefit, so that when
utilized, including usury'. Prophet Muhammad in his saying: “Any debt that
benefit is riba'.”
According
to Imam Ahmad, Isaac al-Layth and al-Hasan, if the hock goods vehicles that can
be used or animals that can take the milk, then the recipient may benefit from
the mortgage lien objects are adapted to the issuance of the maintenance fee
for vehicles or animals livestock was available to him. Rasullullah
SAW said: “Animals should be ridden as mounts financing if mortgaged, the
animal should be taken to drink milk because of its financing when
mortgaged. For people who hold and drink milk are required to provide the
cost.” (Al-Kahlani, 51)
Capture
the benefits of the objects in the emphasis placed liens or labor costs for
maintenance, so for those who hold such as pawn items above have additional
obligations. Namely, the lien holder is obliged to provide food items if
the item is a pledge that should take care of animals and the pledge of goods if
the holder of a vehicle. So, that is allowed here is the maintenance
effort to hock stuff in him.
E. Risk of Damage to Goods
hock (Marhun)
According
to Imam Shafi'i, if marhun murtahin lost under the authority is not obliged to
replace it, unless it is damaged or lost due to negligence or due murtahin
wasted. For example murtahin playing with fire, and burn stuff that
pledge. Or warehouse is not locked then the goods are stolen. So,
compulsory replace it, because it is the responsibility murtahin.
In
accordance with the rules of Islamic law, that “An indirect cause of the
damage, no compensation is required. Unless he resort to such
actions.” (Ahmad, 1996:455)
Meanwhile,
according to Imam Hanafi, who holds marhun murtahin bear the risk of damage or
loss marhun marhun, if it is damaged or missing marhun. Either due to
negligence or wasted or not. Similarly, the opinion of Imam Ahmad Azhar
Bashir.
F. Completion Pawn
To
maintain that there is no injured party, should not be held in fiduciary
terms. Although it is done, then the requirement does not apply in
Islam. For example, when a contract lien, pronounced “rahin if unable to
repay the debt until the time allowed, then it belongs marhun murtahin as
payment of debt”. Therefore, there is a possibility at the time of payment
which has been determined to pay the debt, the value marhun price will be
smaller or larger than rahin debt to be paid. So as to have two effects,
one of which could harm the party or parties murtahin rahin. Namely, if
the price marhun larger, it could hurt the party and if the price rahin marhun
smaller, it can be detrimental to the murtahin.
In
HR. Ahmad explained, that “Whoever is doing something to affect the prices
of goods of the Muslims with the aim of raising prices, it has become the right
of God to put him in 'Uzm (great place) in the Fire on the Day of
Resurrection”. (Imam Hambal, 1993, vol 5:28) If the conditions as
above were held in a fiduciary contract, the contract was valid, but the terms
need to be considered null and.
In
this case the Government of Indonesia (1999:5), the No. BFL. 8 of 1999
Chapter I, Article 1, No. 2, explains: “Every person users of goods or services
available in the community, whether it be for yourself, family, others, as well
as other creatures, and not for sale.”
According
Hendi (2005:108), if on time payments that have been determined, rahin not pay
its debts. Thus, the right is selling marhun murtahin. While buyers
may murtahin themselves or others. However, the price prevailing at the
time of the sale marhun. Murtahin rights only for
claims. Consequently, if the sales price marhun greater than the amount
owed, then the remainder is returned to rahin. And if the sales price
marhun smaller, then rahin still bear the payment of the deficiency.
G. Riba and Pawn
Lien
agreement is essentially a contract debts. However, the liens are
guaranteed. Riba will happen in the mortgage lien if the contract
specified that rahin should provide additional payments to murtahin in
debts. Or when the lien is determined the terms and conditions are
implemented.
When
rahin not afford to pay its debts until the appointed time, then sell marhun
murtahin with no excess to rahin marhun price, then here also have been
applicable usury.
