DISPARITAS PUTUSAN DALAM SENGKETA WANPRESTASI EKONOMI SYARI’AH TENTANG GANTI RUGI (TA’WID)

Ahmad Muhris, S.H., NIM.: 23203012028 (2025) DISPARITAS PUTUSAN DALAM SENGKETA WANPRESTASI EKONOMI SYARI’AH TENTANG GANTI RUGI (TA’WID). Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This study focuses on the disparity of judicial decisions concerning compensation (Ta‟wīḍ) in identical breach of contract cases decided by the same judge within the same court. In one of the two cases, the judge, in rendering the decision, did not clearly refer to statutory regulations to strengthen the legal reasoning underlying the consideration, but instead based the decision solely on the nominal amount of the respondent‟s financial obligation. Based on this phenomenon, it is necessary to conduct research addressing the following issues: (1) how judges formulate legal considerations in awarding compensation (Ta‟wiḍ) in Sharia economic breach of contract disputes; and (2) why disparities occur in judicial decisions regarding the awarding of compensation (Ta‟wiḍ) in Syariah economic breach of contract disputes?. This research employs a qualitative method, using descriptive-analytical library research with a normative approach. The data sources consist of: (1) primary data in the form of judicial decisions and interviews with judges; and (2) secondary data comprising statutory regulations and literature relevant to the object of the study. The data collection techniques include documentation and interviews. The theoretical framework applied in this study is the theory of judicial decision disparity. The results of the study indicate that: (1) the judges‟ considerations in the two cases refer to: (a) statutory norms, (b) judges‟ assessment of evidence of actual losses, and (c) evaluation of the elements of breach of contract within Sharia-based agreements; and (2) the disparity in compensation decisions in the two cases is influenced by three factors, namely: (a) epistemological factors related to judges‟ knowledge, (b) methodological factors concerning judges‟ legal reasoning and methods of istinbāṭ, and (c) empirical factors related to the quality of evidence. This study is not without limitations and therefore calls for further research, particularly from the perspective of judicial reasoning (istidlal al- Hukmi or legal reasoning), examined through the lenses of legal philosophy and ushul al-fiqh, among other approaches.

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