Ishkalat namadhij al-ta'min al-takafuli wa-atharuha fi alfayid al-ta'mini: rukhyat fiqhiyyat naqdia
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Although three decades or more have elapsed since the emergence of takaful industry, a period in which this industry has received wide acceptance and witnessed a great development in its operations and products, the takaful models that are being implemented in it have not been free of many juristic and technical problems. This is an agreed upon fact among Shari'ah scholarly authorities and practitioners alike; these problems concerns mainly the ownership and distribution of the surplus. This situation urged some Shari'ah institutions of worldwide scholarly authority (such as the International Fiqh Academy, one of the agencies of OIC) to call for the need of more research in order to develop a new model that would overcome the defects of the existing models that are in use in takaful industry, be more compliant with the Shari'ah rules and fulfilling its objectives, and in harmony with the legislative regimes governing the insurance sector in the countries that are more receptive to takaful insurance. In light of the above, the present article examines the most critical Shari'ah issues that have been raised against the existing donation or tabarru'-based takaful models (such as the nature of donation, the transformation of donation relationship between the insured and the tabarru' fund into an exchange relationship, considering the surplus as profit in the mudarabah model though it is in no way an addition to the capital, the legitimacy of the distribution of surplus among the insured and the takaful company, the ownership of the fund, etc.). The article also looks into some of the technical problems facing takaful insurance, such as including the accounting basis of insurance coverage, agency problems, etc. Special attention has been given to issues pertaining to the surplus, given the fact that it is the most problematic matter in takaful industry on which there has been much debate and controversy; in which respect the article has shown that the existing applied models have not been able to provide proper solutions. Finally, the article examines critically the wadi'ah-based model proposed by the International Shari'ah Research Academy for Islamic Finance (ISRA), thus evaluating, amending and developing it in such a way as would make it juristically more sound and capable of overcoming the problematic issues of the existing models.
Takaful industry , Tabarru' (donation) , Wakalah (agency) , Mudarabah , Waqf (trust) , Takaful surplus , Wadi'ah
Soualhi, Y. & Bouhedda, G. (2013). Ishkalat namadhij al-ta'min al-takafuli wa-atharuha fi alfayid al-ta'mini: rukhyat fiqhiyyat naqdiah. At-Tajdid, 17 (34), pp. 97-125.