Page 162 - IANUS n. 26 - Fideiussioni omnibus e intesa antitrust: interferenze e rimedi
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VALENTINO CATTELAN





               transactions (as in the case of financial derivatives), therefore, become unlawful
               in the light of Islamic risk management.
                  Last,  as  seen,  this  asset-backed  financial  model,  fostered  by  the  need  of
               exchange  equilibrium,  upholds  human  agency  and  participation  in  the
               ‘real’/‘right’ (haqq) through criteria of profit-loss sharing implemented by Islamic
                                                          49
               financial institutions in their business activity.
                  Considering  all  this,  some  conclusions  can  be  advanced  on  the
               conceptualization of risk (as rizq ﻕﺯﺭ and, then, daman ﻦمﺿ) in Islamic finance.
                  A fundamental principle has been preliminarily mentioned in our investigation:
               al- kharaj bi-l-daman, ‘profit follows responsibility’, ubi emolumentum ibi onus. The
               principle is incorporated in a famous hadith, according to which the risk for loss of
               an asset falls upon the person who is receiving benefit from the asset itself.  As
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               seen, in Islamic finance any advantage or disadvantage cannot be separated from a
               contextual ownership or possession (gain accompanies liability for loss).
                  Thus,  in  case  of  commercial  activities,  where  participants  provide  capital
               and/or labour, the contracting parties necessarily share the risk of the undertaking,
               and,  consequently,  its  profits  (mudaraba  and  musharaka).  In  asset-based
               transactions, risk follows the ownership or possession of the res, and a fixed return
               (e.g., the mark-up of murabaha) becomes admissible, not in terms of the illicit riba,
               but as related to the risk that has been borne by the vendor (again, al-kharaj bi-l-
               daman). In other terms, here, the risk is not a commercial ‘entity’ per se, but «is
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               generally a function of either legal ownership or possession of the res».
                  The proposed interpretation of al-kharaj bi-l-daman as the principle governing
               the  legitimacy  of  profit  in  Islamic  risk  management  finds  confirmation  in the
               centrality of the object in the theory of contracts in Islamic law (where «it is the
               thing…  that  takes  primacy.  […]  the  thing  must  have  a  material,  concrete
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               existence. It does not exist trace of what has been called: res incorporales»).  This
               principle provides hermeneutical help in the understanding of the fatawa issued


                  49  Although much is still to be done in the direction of equity-products, such as mudaraba and
               musharaka, as major share of their portfolio. Accordingly, Islamic scholarship has always called for
               an increase of equity-based products in the balance sheets of Islamic financial institutions. See, for
               instance, the resolution by the AAOIFI Shari‘ah Board (13- 14 Feb 2008, Bahrain): «the Shari’ah
               Board  advises  Islamic  Financial  Institutions  to  decrease  their  involvement  in  debt-  related
               operations and to increase true partnership based on profit and loss sharing in order to achieve the
               objectives of the Shari‘ah».
                  50  Abu Dawud, Tirmidhi, Nisa’I, ibn Maja, Ahmad ibn Hanbal. The principle was also incorporated
               in Art. 85 of the Majalla (see also Art. 87, al-ghurm bil-ghunum, which has the same meaning).
                  51   FADEL,  The  regulation  of  risk  in  Islamic  law,  the  common  law,  and  federal  regulatory  law,  in
               Proceedings of the Fourth Harvard University Forum on Islamic Finance, Harvard University, Cambridge,
               Massachusetts, 2002, 83.
                  52  CHEHATA, Études de droit musulman. 2 / La notion de responsabilité contractuelle. Le concept de
               propriété,  Paris,  1973,  122.  See  also  VOGEL,  Contract  law  of  Islam  and  the  Arab  Middle  East,  in
               International  Encyclopedia  of  Comparative  Law,  Vol.  VII,  Contracts  in  general,  Chapter  7,  Tübingen,
               Dordrecht, Boston, Lancaster, 2006, 1-77.

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