The Legal Interpretation of the State of Musytari’s Force Majeure on the Murabahah: Financing Contract Post Presidential Decree No. 12 of 2020

Force majeure, Interpretation, Murabahah Financing

Authors

  • Bagya Agung Prabowo
    bagya.prabowo@uii.ac.id
    Lecturer, Faculty of Law, Universitas Islam Indonesia, Jalan Kaliurang Km 14,5 Sleman DIY. Dr (University Kabangsaan Malaysia), MH (Universitas Islam Indonesia), SH (Universitas Islam Indonesia)
  • Nurjihad Lecturer, Faculty of Law, Universitas Islam Indonesia, Jalan Kaliurang Km 14,5 Sleman DIY. Dr (Universitas Islam Indonesia). MH (Universitas Indonesia) SH (Universitas Islam Indonesia)
January 16, 2023

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Force majeure may occur in a murabahah financing contract, which is the most widely used financing product by Islamic banking. This coercive situation has elements that must be fulfilled to be regulated in Article 1245 of the Civil Code (BW), which stipulates that compensation and interest can be forgiven in case of compelling circumstances. Many experts and practitioners are of the view that Article 1245 of the Civil Code can be used as the legal basis for the application of force majeure even though this clause has not been regulated in the agreed contract. On the other hand, this murabahah contract is regulated in the Supreme Court Regulation Number 2 of 2011 concerning the Compilation of Sharia Economic Law (KHES). The issuance of Presidential Decree Number 12 of 2020 concerning the Determination of Non-Natural Disasters for the Spread of Corona Virus Disease 2019 (Covid-19) as a National Disaster has implications for the emergence of various interpretations among the public and can be used as the basis for the cancellation of civil contracts, including murabahah contracts. The reason is that disaster is a force majeure that causes people to be unable to fulfill their achievements due to events beyond their capabilities. To overcome these problems, this research uses an analytical method based on doctrinal content by applying four types of legal approaches, namely: (i) historical/historical; (ii) Jurisprudence/philosophy; (iii) comparison; and (iv) analytical and critical. This study aims to identify the legal interpretation of Musytari's force majeure in murabahah financing contracts.