TINJAUAN HUKUM ISLAM DAN HUKUM POSITIF TERHADAP PRAKTIK GADAI SAWAH DI DESA GARDUMUKTI KECAMATAN TAMBAKDAHAN KABUPATEN SUBANG

Handika Maulana, NIM.: 19103080073 (2024) TINJAUAN HUKUM ISLAM DAN HUKUM POSITIF TERHADAP PRAKTIK GADAI SAWAH DI DESA GARDUMUKTI KECAMATAN TAMBAKDAHAN KABUPATEN SUBANG. Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Pawn is holding an object that has property value in the view of Shara' as collateral for debt, as long as the debt has not been repaid, the collateral used as the object of the pawn cannot be returned within the agreed period. In Gardumukti Village, Tambakdahan Subang Regency, there is a pawn practice with a guarantee of rice fields that can be utilized indefinitely. The pawn practice is clearly detrimental to one party because the land used as collateral is fully controlled by the murta>hin. This research was conducted to answer the problems that have been formulated by the authors, namely about the practice of pawning in terms of Islamic law and positive law. This research uses a qualitative method with a descriptive form of analysis. The type of research used is field research using a juridical-formative approach, namely an approach that is based on law to obtain conclusions whether something is in accordance with existing legal provisions or not. The data sources in this research use primary data in the form of observations and interviews, as well as secondary data obtained from library materials in the form of books, journals, statutory regulations and articles. The research results show that the practice of pawning rice fields that occurs in Gardumukti Village is not in accordance with sharia provisions. The practice that has been carried out has fulfilled the pillars of pawning practice, however, when the contract takes place there are conditions that must be met murtahin in order for the pawn practice to take place, these conditions are collateral, which can be used to give rise to benefits on the debt. This is feared to give rise to cases of usury. Islamic Sharia clearly prohibits this practice of muamalah. Meanwhile, in the view of Positive Law, the practice of pledging occurs when the creditor exercises control over the object of collateral so that it can be utilized, whereas according to the Civil Code the practice of utilizing pawned goods is an act that can eliminate the existence of a pawn transaction. Because in article 1159 of the Civil Code it is explained that the right to pledge is extinguished if there is misuse or use of the pawned item by the creditor, because basically the pledged item in Civil Law is only used as collateral, not used.

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