The Problematic Aspects of Possession and Delivery in Murabaha Sale to the Purchase Orderer: An Analytical Study in Islamic Jurisprudence and Libyan Law

Abstract

This study examines the problematic aspects of possession and delivery (qabḍ and ḥiyāzah) in Murabaha sale to the purchase orderer, as one of the most widely applied financing instruments in contemporary Islamic banking. The importance of this topic stems from the fact that possession and delivery constitute fundamental pillars for the validity of Islamic financial contracts and serve as decisive criteria distinguishing lawful sales from disguised usurious lending.

The research adopts a comparative analytical methodology by examining the concept of possession and delivery in Islamic jurisprudence—particularly within the Maliki school—and comparing it with the relevant provisions of Libyan legislation, especially the Libyan Civil Code and commercial laws. The study also analyzes modern banking practices in Murabaha transactions, focusing on both actual and constructive delivery and assessing their conformity with Sharia and legal requirements.

The findings reveal a significant theoretical convergence between Islamic jurisprudence and Libyan law regarding the necessity of possession and transfer of risk for the validity of sale contracts. However, the study highlights a substantial gap at the practical level, where excessive reliance on constructive possession and nominal ownership—especially in certain modern financing structures—undermines the essence of Murabaha as a genuine trade-based transaction, bringing it closer to prohibited interest-based financing.

The study concludes by recommending the development of clearer regulatory and supervisory frameworks governing possession and delivery in Islamic banking Murabaha operations, and by strengthening the role of Sharia supervisory boards and legal oversight to ensure compliance with Islamic principles while accommodating contemporary financial practices.