Page 157 - IANUS n. 26 - Fideiussioni omnibus e intesa antitrust: interferenze e rimedi

IANUS n. 26-2022 ISSN 1974-9805

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moving from a restricted domain into larger commercial practice. At present,
Islamic financial institutions offer to the generality of customers (Muslim or not)
an immense variety of products, from investment-deposits (so-called PSIAs, profit
sharing investment accounts) to takaful, lit. ‘guaranteeing each other’, the Islamic
risk-shared insurance model aimed at avoiding ‘uncertainty’ (gharar); as well as
equity fund management and Islamic securities (sukuk).
In compliance with Shari‘ah, fundamental peculiarities characterize Islamic
financial transactions, whose validity requires, apart from the avoidance of
prohibited investments (such as alcohol, pork, pornography), the elimination of
any profit deriving from an ‘unlawful increase’, that is to say, interest (prohibition
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of riba), unreasonable uncertainty (ban of gharar) and gambling (maysir).
These rules necessarily result in a favour towards asset- and equity-based
financial instruments and a corresponding dismissal of both debt-based products
(likely to produce riba) and hazard-affected securities (gharar, maysir). More
precisely, since conventional loans are essentially gratuitous in Islamic law (due
to the prohibition of riba), ordinary interest-bearing credit transactions are
replaced in Islamic finance by asset-backed contracts, such as murabaha (mark-up
or cost-plus sale), salam (advance purchase), istisna‘ (commission to manufacture)
and hire-and-sale (ijara); or by equity-based instruments such as mudaraba (silent
partnership) and musharaka (full partnership). In both cases (asset-backed or
equity instruments), legitimate profit has to derive from the necessary assumption
of a liability correlated to a reference entity, according to the fundamental
principle al-kharaj bi-l-daman, that is to say, profit (i.e. the chance of gain, in the
sense of what is someone’s due, what someone deserves; see Wehr: ﻚﺟﺮﺧ ﺍﺬﻫ
«that’s what you need, what you deserve» ) relates to liability, i.e. the risk of
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potential loss for which the person is responsible (from the root ضمن damina, ‘to
be or become responsible or liable, give security or guaranty’).
Thus, another notion of ‘fortune’, different from, while complementary to, ﺭﺯﻕ
rizq, ‘(God’s) sustenance’, appears here: that is to say, the basic postulate in Islamic

24 The literature dealing with Islamic economics and finance is enormous. Valuable references
remain ARCHER - KARIM (eds.), Islamic finance: the regulatory challenge, New York, 2007; AYUB,
Understanding Islamic finance, New York, 2007; CHAPRA, Islamic welfare State and its role in the economy,
cit.; CHAPRA, Islam and economic development, Islamabad, 1993; EL-GAMAL, Islamic finance. Law,
economics, and practice, Cambridge, 2006; HASSAN - LEWIS (eds.), Handbook of Islamic banking,
Cheltenham, UK, 2007; IQBAL - LLEWELLYN (eds.), Islamic banking and finance: new perspectives on
profit-sharing and risk, Cheltenham, UK, 2002; Khan - Porzio (eds.), Islamic banking and finance in the
European Union. A challenge, Cheltenham, UK, 2010; SIDDIQI, Banking without interest, cit.; SIDDIQI,
Issues in Islamic banking: selected papers, cit.; USMANI, Introduction to Islamic finance, Karachi, 2000;
VOGEL - HAYES, Islamic law and finance: religion, risk and return, Arab and Islamic Law Series, The
Hague, 1998; WARDE, Islamic finance in the global economy, Edinburgh, 2000.
25 SALEH, Unlawful gain and legitimate profit in Islamic law: riba, gharar and Islamic banking, II ed.,
London, 1992; CATTELAN, From the concept of haqq to the prohibitions of riba, gharar and maysir in
Islamic finance, in International Journal of Monetary Economics and Finance, 2009, 2 (3/4), 384-397.
26 WEHR, A dictionary of modern written Arabic, cit.

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