تجربة البنوك التشاركية المغربية في بيع المرابحة للآمر بالشراء : دراسة نظرية تطبيقية في ضوء الفقه المالكي و الاجتهاد الفقهي المعاصر

Abstract EN

This paper is part of documenting and tracing the roots of Murabaha (sale for profit) for the buyout order.

It aims to answer the following question: to what extent has the Moroccan legislature succeeded in finding a legally acceptable product consistent with the requirements, origins and purposes of Maliki’s jurisprudence and taking into account contemporary reality? After investigating Al-Maliki’s opinion about the promise to buy goods before they are owned, it has been shown that the sale for profit for the buyout order is permissible if we consider that the promise is not binding and that the contract becomes valid after the goods are owned.

The sale, then, is optional for each of the two dealers as the trick is not imminent and the sale is valid.

The Moroccan legislature has benefited from contemporary jurisprudence and from the objections and directives aiming at its development and revision.

They have chosen what is in accordance with the requirements of the Islamic sharia and Al Maliki’s jurisprudence in particular.

They have given the bank the choice to oblige the client in sale for profit for the benefit of the buyout order.

That is because of the absence of the inhibiting causes manifested in selling what we do not own, what is not guaranteed and what is sold twice in one sale.

The bank may sell to a person other than the first order of purchase, the second sale being separate from the first.

Binding the client and leaving the option to the bank to choose a conciliator is in accordance with the rules of interest and controls the transaction, removing the bank’s fears of harm at the neck and achieving contractual security.