Hakekat Dari Asas Maslahah Al Mursalah  Dalam Melakukan Pengalihan Utang (Take Over) Dari Transaksi Non Syariah Ke Transaksi Syariah Dalam Pembiayaan Pemilikan Rumah Syariah

David Novan Setyawan; Thohir Luth; Sukarmi Sukarmi; Nur Chanifah

doi:10.32503/klausula.v5i2.9455

David Novan Setyawan Fakultas Hukum Universitas Brawijaya
Thohir Luth Fakultas Hukum Universitas Brawijaya, Malang, Indonesia
Sukarmi Sukarmi Fakultas Hukum Universitas Brawijaya, Malang, Indonesia
Nur Chanifah Fakultas Hukum Universitas Brawijaya, Malang, Indonesia

DOI: https://doi.org/10.32503/klausula.v5i2.9455

Abstract

Debt transfer (take over) from non-Sharia transactions to Sharia transactions in housing financing represents a transformation of a legal relationship that involves not only the transfer of payment obligations but also changes in contractual characteristics, transactional principles, and the legal relationship between customers and financing institutions. This issue becomes significant when debt transfer occurs from conventional financing mechanisms involving interest to Sharia financing based on the prohibition of riba, gharar, and maysir. This research aims to analyze the essence of the principle of maslahah al-mursalah in implementing debt transfer (take over) from non-Sharia transactions to Sharia transactions in Sharia housing financing and to formulate its application in a manner that provides benefit, justice, and legal certainty for the parties involved. This study employs normative legal research using statutory, conceptual, and Islamic legal approaches. Primary, secondary, and tertiary legal materials are analyzed qualitatively and prescriptively by examining positive legal provisions, principles of Sharia contracts, and the concept of maslahah al-mursalah. The findings demonstrate that the essence of maslahah al-mursalah in debt transfer lies in realizing benefits consistent with the objectives of Islamic law while preventing harm within financing relationships. The principle may serve as a normative foundation for developing a take over mechanism that does not merely transfer debt but transforms the financing relationship into a contractual structure that complies with Sharia principles. The application of maslahah al-mursalah must satisfy substantive requirements, including the existence of genuine benefit, relevance to the interests of the parties, consistency with established Sharia principles, and the capacity to protect the rights and obligations of the parties. This framework is expected to strengthen legal certainty and promote justice within Sharia housing financing. The application of maslahah al-mursalah therefore provides an important conceptual foundation for developing debt-transfer arrangements that harmonize contractual interests, Sharia compliance, and legal protection

References

Debt transfer (take over) from non-Sharia transactions to Sharia transactions in housing financing represents a transformation of a legal relationship that involves not only the transfer of payment obligations but also changes in contractual characteristics, transactional principles, and the legal relationship between customers and financing institutions. This issue becomes significant when debt transfer occurs from conventional financing mechanisms involving interest to Sharia financing based on the prohibition of riba, gharar, and maysir. This research aims to analyze the essence of the principle of maslahah al-mursalah in implementing debt transfer (take over) from non-Sharia transactions to Sharia transactions in Sharia housing financing and to formulate its application in a manner that provides benefit, justice, and legal certainty for the parties involved. This study employs normative legal research using statutory, conceptual, and Islamic legal approaches. Primary, secondary, and tertiary legal materials are analyzed qualitatively and prescriptively by examining positive legal provisions, principles of Sharia contracts, and the concept of maslahah al-mursalah. The findings demonstrate that the essence of maslahah al-mursalah in debt transfer lies in realizing benefits consistent with the objectives of Islamic law while preventing harm within financing relationships. The principle may serve as a normative foundation for developing a take over mechanism that does not merely transfer debt but transforms the financing relationship into a contractual structure that complies with Sharia principles. The application of maslahah al-mursalah must satisfy substantive requirements, including the existence of genuine benefit, relevance to the interests of the parties, consistency with established Sharia principles, and the capacity to protect the rights and obligations of the parties. This framework is expected to strengthen legal certainty and promote justice within Sharia housing financing. The application of maslahah al-mursalah therefore provides an important conceptual foundation for developing debt-transfer arrangements that harmonize contractual interests, Sharia compliance, and legal protection.