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WHAT IS INSURANCE?
The law of insurance is contained in the insurance ordinance 2000. It extends to the whole of
Pakistan. The securities and exchange commission of Pakistan will implement the law.
Insurance is a means to spread the loss caused by particular risk over a number of people against
some amount called premium. Insurance creates a fund under which many persons contribute
some money called the premium, out of which the persons who suffer losses are compensated.
Definition of Insurance:
“A contract of insurance is contract in which one party undertakes,
against premium, to pay to the other party a certain amount on the happening of a certain event.
A contract of insurance is a conditional contract. The general principles
of the law of contract apply to it. It is a valid contract. It comes into existence by the offer in the
form of proposal and its acceptance. The object of the contract must not be immoral or illegal.”
1. Insurer
2. Insured
Insurer:
The party which promises to pay to certain sum of money to the other party is called the
insurer (insurance company).
Insured:
The party of whom a certain some of money is paid is called the insured (Policy-holder)1
Explanation:
Insurance is a risk transfer mechanism hereby the individual or the business
enterprise can shift some of the uncertainties of life on the healthier, comfortable and easy life to
meet this requirement different enterprises produce and provide goods and services. They make
1
Cheema, Khalid Mahmood, Business Law, Published by Syed mobin Mahmud & co, Lahore, 2007, page# 368
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innovation and invention, which take great risk. Large responsibility falls on the shoulder of
innovators and inventors. A small error or lapse may cause numerous side effects and cause
death or disability. These types of risks highlight the importance of insurance. If there had not
been insurance at the back of all innovators the world would have never progressed. After
assuring this in security factor the enterprises started looking for new and more high-tech
machines robots and gargets, atomic technology, space traveling computers, deep sea
exploration, development of concords and jumbos and medical technology for hydro hear led
diseases. All these developments could be possible with support of insurance.
In peace the insurance provides protection to trade and industry, which ultimately contributes
towards human progress. Thus insurance is the most lending force contributing towards
economics, social and technological progress of man. Without insurance cover all industrial,
economic and social activity of the world will come to a grinding halt.
An insurer, by nature, tries too split and diversify its risks in many ways a very important way is
to split them horizontally and vertically within reinsurance companies and horizontally to their
competitors.
The following principles apply in insurance:
• Insurable Interest.
• Utmost good faith
• Proximate cause
• Indemnity
• Contribution
• Subrogation
The insurance market comprises the following types of insurers:
• Lloyds.
• Ordinary Life & General Companies
• Industrial Life Assurance companies
• Friendly societies
• Mutual Indemnity Associations
• Captive Insurance companies
• Self Insurance
• The State.
The premium received goes into a fund or pool from which the claims are paid. Because of large
number of clients in any particular fund or pool, the insurers can predict, with reasonable
accuracy by applying the law of large numbers and actuarial calculation methods, the amount of
claims likely to be incurred in the coming year. However, there will be some variation in claim
costs from year to year for which a small margin is to be built up in reserve. As a result of better
performance of insurance company some benefit is paid back to the policyholders in shape of
bonus in life insurance and no claim bonus is motor/property insurance.
Commercial Insurance and all its contracts are relatively new development. The pioneer muslims
neither knew it nor was it ever considered by the earlier Islamic Jurisprudents. It was for the first
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time examined by a Hanafi Jurist syed Ibn Abdin (dead 1252 H corresponding to 1836 A.D.) at
the request of some muslim merchants who sought his poinion about the validity of marine
insurance under Islamic laws. He discussed the essence of marine insurance and concluded” I see
that it is not permitted to any merchant to get indemnity for his damaged property against the
payment of a certain sum of money known as insurance premium; because this is a commitment
for what should not be committed to.”
The attitude towards illegality of insurance from Islamic point of view continued for full century
after ibn Abdin. However in view of the tremendous importance assumed by insurance for the
modern finance, trade and industry the contract of insurance has been subject matter of extensive
and in depth studies and discussions amongst the Islamic Jurisprudents during the past several
decades.
In 1396 H (1976) the first international conference on Islamic Economics was held in Makkah,
which was attended by more that 200 Islamic Jurists and Economists. They reached at the
following decision on it:
“The conference sees that the commercial insurance which is practiced by the commercial
insurance companies in this era does not conform to the shariah principle of cooperation
and solidarity because it does not fulfill the shariah conditions which would make it valid
and acceptable”.
This conference also suggested that a committee comprising of shariah Experts & Muslim
Economists should be constituted in order to suggest a system of insurance that will be free of
“Riba”., Usury and gharar the matter continued to receive the attention of numerous groups of
Islamic Jurisprudents in cooperation with eminent and distinguished economists and insurance
experts who came up with different conclusion, views and opinions. Some of them approved all
forms of insurance subject to certain conditions, limitations and qualifications, others totally
disapproved all of them. However an overwhelming majority of Islamic shariah.
The objection is against the existence of the weaknesses in the insurance contract namely:
• Gharar (Uncertainry);
• Maisir (Gambling);
• Riba (Usury).
Muslim jurists acknowledge that the basis of shared responsibility in the system of "aquila" as
practiced between Muslims of Mecca and Medina laid the foundation of mutual insurance.
Islamic insurance was established in the early second century of the Islamic era when Muslim
Arabs expanding trade into Asia mutually agreed to contribute to a fund to cover anyone in the
group that incurred mishaps or robberies along the numerous sea voyages (marine insurance).
Takaful Insurance
The Tabarru' system is the main core of the takaful system making it free from uncertainty and
gambling. Tabarru' means "donation; gift; contribution." Each participant that needs protection
must be present with the sincere intention to donate to other participants faced with difficulties.
Therefore, Islamic insurance exists where each participant contributes into a fund that is used to
support one another with each participant contributing sufficient amounts to cover expected
claims. The objective of takaful is to pay a defined loss from a defined fund.
Muslim jurists conclude that insurance in Islam should be based on principles of mutuality
and cooperation. Encompassing the elements of shared responsibility, joint indemnity,
common interest and solidarity.
Fatwa on Takaful:
2
http://www.icmif.org/services/takaful/about.asp , Date 11, Aug 2008
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The Islamic Fiqh Academy emanating from the Organization of Islamic conference, meeting in
its Second Session in Jeddah, Saudi Arabia, from 10 to 16 Rabiul Thani, 1406 H (corresponding
to 22-28 December, 1985) issued a resolution which in summary stated the following:
• After reviewing the presentations made by participating scholars during the session on
the subject of ‘Insurance/Re-insurance’;
• And after discussing the same;
• And after closely examining all types and forms of insurance and deeply examining the
basic principles upon which the are founded and their goals and objectives;
• And having looked into what has been issued by the Fiqh Academies and other
instituitions in ths regard;
Resolves:
• The participants mutually contribute to the same fund for the purpose of mutual
indemnity in case of risk and harm. 3
1.
It is a Risk Transfer mechanism whereby risk is transferred from the policy holder (the Insured)
to the Insurance Company (the Insurer) in consideration of 'insurance premium' paid by the
Insured.
It is based on mutuality; hence the risk is not transferred but shared by the participants who form
a common pool. The Company acts only as the manager of the pool (Takaful Operator).
2.
It contains the element of uncertainty i.e. "gharrar" which is forbidden in Islam. There is an
uncertainty as to when any loss would occur and how much compensation would be payable.
3
http://www.takaful.com.pk/Fatwa.html
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The element of 'uncertainty' i.e. 'gharrar' isbrought down to acceptable levels under Shariah by
making contributions as "Conditional Donations" (tabarru) for a good cause i.e. to mitigate the
loss suffered by any one of the participants.
3.
It contains an element of gambling i.e. "maisir" in that the insured pays an amount (premium) in
the expectation of gain (compensation/payment against claim). If the anticipated loss (claim)
does not occur, the insured loses the amount paid as premium. If the loss does occur, the insurer
loses a far larger amount than collected as premium and the insured gains by the same.
The participant pays the contribution (tabarru) in the spirit of Ne'ea (purity) and brotherhood;
hence it obviates the element of 'maisir' while at the same time without losing the benefit of
Takaful in the same way as conventional insurance.
4.
Funds are mostly invested in fixed interest bearing instruments like bonds, TFCs, securities, etc.
Hence these contain the element of "riba" (usury) which is forbidden in Islam.
Surplus belongs to the participants and is accordingly returned to them (in proportion to their
respective shares of contributions) at the end of the accounting period