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Literall meaning :
Technically meaning :
• Istisna’a also a contract as a financing tool, which is a contract that allows the sale of a
commodity that does not exist at the time of contracting, while payment can be made on
spot or deferred basis.
Overall, Istisna’a can be said as a sale contract between the bank as Al-Sani (the seller) and
the customer as Al-Mustasni (the ultimate purchaser) whereby the bank.
The person who manufactured the thing is called “Soni” and the person who ordered its
manufacture is called “Mustasni” and the thing made “Masnu”.
APPLICATION OF ISTISNA (IN BANKING)
Most of the banking institutions in the middle east applied the Istisna’ concept as one of their
banking products. We choose Bahrain as one of the country that also applied this concept. One
of the banking institutions there is Bank Al Baraka that is located in Manama. Below is the
processs of Istisna’a sale in Bank Al Baraka.
1. The process starts when a customer expresses to the bank its intention to purchase a
commodity that has to be manufactured, built or assembled with certain specifications at
a specified price.
2. The bank and the customer enter into an Istisna’a contract under which the bank
undertakes to have the subject commodity manufactured and delivered to the customer
within a certain period in return for a specified price payable on spot or on several
installments or in one stroke on deferred basis.
3. The bank then enters into a back-to-back Istisna’a contract with a third party to have the
subject commodity manufactured, built or assembled.
PARTIES OF ISTISNA’A CONTRACT
Muslim jurists have tried to establish the legality of this contract from different legal sources: the
Qur'an, the Sunnah, Ijma', Qiyas, Istihsan, and Maslahah. However, Istihsan seems to represent
the first legal basis for this contract especially in the literature of the classical schools of law. Al-
Kasani in this regard said:
Concerning the legality of Istisna', in principle it would not be allowed on the basis of Qiyas
because it is a sale of what we do not have nor on the basis of Salam and the Prophet had
prohibited the sale of what we do not have ... and it is allowed based on Istihsan because people
are unanimous about its need. They have used it through the ages and the Prophet has said:
Regarding the basis of Istisna' under public interest (Maslahah), which refers to unrestricted
public interest in the sense of not having been regulated by the lawgiver and no textual authority
can be found on its validity or vice versa, 28 al-Ashgar said: "The use of this contract, for
example: in building construction, shoes, furniture and other items without objections from the
scholars is a demonstration of the general need. Therefore, it should be legal on the basis of
public interest".29
On the other hand, Siddiq al-Darir maintains that Istisna' is based on Qiyas and not against it as it
is claimed by the Hanafis. He argues that although the subject-matter in this contract does not
exist, its availability is certain, and there is no risk (gharar) especially in the opinion that Istisna'
is a binding contract. Then it is a legal contract, and any contract free from excessive risk
(gharar} is a contract in accordance with Qiyas.30
REFERENCES:
http://www.financeinislam.com/article/1_35/1/207
http://www.abg.bh/English/FIstisna.htm
http://islamicbankers.wordpress.com/focus/in-focus-bai-salam/