Kepastian Hukum Jaminan pada Akad Bagi Hasil (Mudharabah) di Bank Syariah Indonesia Pasca Merger

Abstract

National development is an important indicator in assessing the progress of a country, including in the economic sector, which is reflected in the existence and role of banking institutions. In Indonesia, the Islamic banking sector has developed rapidly, one of which is through the establishment of Bank Syariah Indonesia on February 1, 2021, as a result of the merger of three Islamic banks: Bank Syariah Mandiri, BNI Syariah, and BRI Syariah. Islamic banks operate based on Islamic economic principles, which include the prohibition of riba (interest), prohibition of monopoly, social solidarity, and the obligation to bear risk. One of the main products of Islamic banks is mudharabah financing, a partnership contract between a capital owner and a business manager, where profits are shared based on mutual agreement. However, the merger has raised legal issues, particularly regarding collateral in mudharabah contracts. The issue arises due to differences in contract systems and collateral valuation among the banks prior to the merger, which can lead to legal uncertainty in the management and enforcement of collateral after the merger. Furthermore, the absence of a specific fatwa from the DSN-MUI regarding mergers in Islamic finance adds to the legal vacuum, causing uncertainty for customers. The discussion chapter addresses three key issues. First, the legal certainty of collateral in mudharabah profit-sharing contracts at Bank Syariah Indonesia postmerger. Second, the legal consequences of binding collateral in mudharabah contracts post-merger. Third, the legal resolution efforts for defaulting debtors in mudharabah contracts at Bank Syariah Indonesia post-merger. The results show that in terms of legal certainty, the bank has the right to obtain collateral from the business manager and the right to execute the collateral if necessary. Based on the conclusions obtained, the researcher provides recommendations for Bank Syariah Indonesia. It is important to strengthen education for customers about the importance of collateral in mudharabah contracts, especially for entrepreneurs who are vulnerable to force majeure, as every financing contains inherent risks. For students, it is essential to continue studying the dynamics of collateral regulation in mudharabah contracts to enrich literature and support the practice of Islamic law that is responsive to the times. Future researchers are encouraged to conduct field studies using an empirical approach at Bank Syariah Indonesia to obtain deeper data on mudharabah financing