Judicial remedies for banks when a customer defaults under Ijarah Muntahia Bi Al-Tamlik home financing facility

• Main Authors: Mokhtar, Norlizah, Hassan, Rusni
• Format: Article
• Language: English
• Published: Lexis Nexis 2017
• Subjects: K Law (General); KBP Islamic Law
• Online Access: http://irep.iium.edu.my/57718/1/57718_Judicial%20remedies%20for%20banks.PDF; http://irep.iium.edu.my/57718/; https://www.lexisnexis.com/my/academic/Default.asp
• Institution: Universiti Islam Antarabangsa Malaysia

The Oxford Dictionary3 defines 'remedy' as a medicine or treatment for a disease or injury but in the legal sense, it is a means of achieving justice in any matter in which legal rights are involved. A legal or judicial remedy is the vehicle for a court of law - usually in exercising civil law jurisdiction -- to enforce a right, charge a penalty or make another court order to impose its will. The objective of this article is to analyse the remedies available to the bank in the event that the customer defaults on his monthly rental payment of the Ijarah Muntahia Bi al-Tamlik. An analysis of these remedies will take into account the Islamic Bank's offer of Ijarah Muntahia Bi al-Tamlik under the concept of a 'financial lease'. The discussion will be based on the default and remedy clause contained in the Facility Agreement (in relation to the Ijarah Property or Home Financing Facility). The basic remedies include arrears of lease rental, the balance of total lease rental, increase rental and compensation (ta'widh). The discussion concludes with a view whether the industry's current practice violates or upholds the principle of Shariah.