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CAR RENTAL COMPENSATION PERSPECTIVE MUI FATWA NUMBER

43/DSN-MUI/VIII/2004 (CASE STUDY OF NADIA RENT CAR MEDAN)

Daulat Baginda Putra Daulay

, Fauziah Lubis

1, 2

State Islamic University of North Sumatra, Medan

Email: gindadaulay12@gmail.com

Email: fauziahlubis@uinsu.ac.id

ABSTRACT

The purpose of this research is to find out the steps for settlement of compensation in the practice of

renting a car based on the perspective of the MUI Fatwa Number 43/DSN-MUI/VIII/2004. The

formulation of the problem used is how to settle compensation for parties who default (consumers)

on verbal agreements made by rental owners (manufacturers) based on MUI Fatwa Number

43/DSN-MUI/VIII/2004. This research includes qualitative research using juridical research

methods that use two sources, namely primary and secondary. As well as conducting interviews with

several car rental users in Medan City, Medan Marelan District. The results of this study show that

several car rental users make verbal agreements between consumers and producers. Regardless of

the consequences of the agreement made verbally which will be accepted if one of the agreements is

forgotten or not pronounced at the time of the contract, then it will be detrimental to one of the

parties. If the consumer commits a default that does not comply with the verbal agreement at the

outset, then the consumer will compensate for the loss determined by the producer. According to the

perspective of the MUI Fatwa Number 43/DSN-MUI/VIII/2004 general provision number 4, namely

the amount of compensation (ta'widh) is in accordance with the value of real compensation (real

loss) that must be experienced (fixed cost) in the transaction and not a loss expected to occur

(potential loss) due to missed opportunities (opportunity loss or al-furshah al-dhai'ah). Where is the

compensation that must be completed according to the agreement made at the beginning by the

producer at the beginning, even if it was done verbally.

Keyword: Rent, Compensation, MUI Fatwa Number 43/DSN-MUI/VIII/2004.

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 CC BY-SA International License.

INTRODUCTION

The relationship between humans with one another in this modern era is very

important, especially in order to meet their needs. Humans to fulfill their life needs must

hold social interactions between one human being and another human being. The form of

this interaction can be in the form of a legal act, which in principle the law regulates the

relationship between one person and another. Every relationship in society cannot be

separated from the law. Legal relationship is a relationship between two or more legal

subjects. In this legal relationship, the rights and obligations of one party deal with the rights

and obligations of the other party. Legal relations can occur between legal subjects and

between legal subjects and objects (Soeroso, 2005).

A legal act is a relationship governed by law in which rights and obligations are

associated with that relationship and failure to comply with those rights and obligations may

result in legal sanctions. Society in everyday life will not be separated from carrying out a

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legal action, one of which is by entering into an agreement in which each party is able to be

accountable and one example of an agreement is a lease agreement. An agreement according

to Article 1313 of the Civil Code is an act in which one or more people bind themselves to

one or more people (Patrik, 1994).

The activity of renting a vehicle is often carried out among the community, whether

it's renting an item or even a vehicle. Where the goods that are rented out have benefits that

can be used either by the tenant of the goods. Rentals that are often carried out among the

community are renting motorized vehicles, be it two-wheeled or four-wheeled, because not

everyone can afford to buy these vehicles to travel long distances. Leasing is an agreement

that is consensual and has legal force, namely when the lease takes place and when the

contract takes place, the lessee (mua'jjir) is obliged to deliver the goods (ma'jur) to the lessee

(Pasaribuan and Lubis, 1994).

The problem that often occurs in the implementation of agreements is default. Default

is a condition where the debtor (one of the parties) does not comply as he should or according

to what is appropriate, including being late for achievement and committing acts that are not

permitted according to the agreement (Khairandy, 2013).

In leasing can not be separated from the name of compensation. Compensation is

something that is done by the lessee of the goods he rented. Compensation will only be

charged by the debtor if the creditor is harmed by the debtor as a result of not carrying out

the responsibilities or fulfilling the promise. Compensation is an obligation that must be

completed by the debtor, because if it is not resolved it will harm the creditor.

Compensation is often broken down into three elements, namely costs, losses and

interest. what is meant by costs are all expenses or expenses that have been incurred by one

party. Loss is a loss due to damage to goods or capital belonging to the creditor caused by

the negligence of the debtor. Meanwhile, interest is a loss in the form of lost profits that have

been calculated or imagined by creditors (Subekti, 2010) .

Problems related to violations of rental agreements (defaults) that often occur in car

rentals are of course common. Violations of the rental agreement include damage to goods

rented by consumers and actions not to return goods rented by consumers. In addition, there

are delays that exceed the return time according to the agreement. If this condition is not

anticipated, it will cause losses.

Compensation violations are carried out by the tenant or from the lessor, which

becomes a problem here when the fines or compensation imposed are unreasonable, this is

also a concern in Islamic law. Not a few of the rentals in the field do this unreasonable

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compensation. As happened with car rental in Medan. This study will discuss compensation

for car rentals on the basis of the MUI Fatwa as the legal basis, because the MUI Fatwa is

one of the qibla which is used as a source of law relating to Islamic law in Indonesia.

RESEARCH METHODS

This type of research is a type of field research (field research). The nature of the

research is analytical descriptive and the research approach is to use a conceptual approach.

Then the source of the data is directly obtained from consumers and with the help of books

related to the title. The sample is consumers from users of rental services Nadia Car Rent

Medan who are used as respondents. While data collection techniques and through

observation, and documentation. Data processing is done by examining data, data

reconstruction and data systematics. Data analysis used qualitative analysis with a deductive

thinking approach. Source of data comes from primary data and secondary data. And in this

research, the form of primary data sources is by studying several documentation related to

laws and regulations or several articles that are in line with the research being conducted.

While secondary data is supporting data as a reference in the form of books, photographs,

records, as well as archives and reports.

RESULTS AND DISCUSSION

1. Lease

Having a car rental for tour purposes is important for tourists. This is also used as an

opportunity by some people who have the capital to open a car rental service as a tourist

need. Car rental carried out by car rental services, has its own terms and conditions. The

existence of these conditions is to maintain good relations with each other, between the

tenant and the service party who rents out.

Ijarah is a contract made on the basis of a benefit in return for services. According to

Islamic jurisprudence, it means giving something for rent and according to Sayyid Sabiq,

Ijarah is a type of contract to take benefits by way of compensation. So essentially ijarah is

the sale of benefits. Benefits sometimes take the form of in-kind benefits, such as a house to

live in or a car to ride (drive). Sometimes it takes the form of work such as the work of an

engineer, construction worker, weaver, dyer and tailor. Sometimes the benefits are various

personal work of someone who devotes energy. The owner who rents out the benefits is

called Mu'ajir, the other party who gives the lease is called Musta'jir and something that is

contracted for benefits is called Ma'jur (rent). While the services provided in return for

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benefits are called Ajran or Ujah (wages). When the lease agreement has taken place, the

tenant has the right to take advantage. Meanwhile, people who rent out have the right to take

wages because this contract is a mu'awadhah (substitute) (Qardhawi, 1997).

In the fatwa of the National Syari'ah Council (DSN), ijarah is a contract for the transfer

of usufructuary rights (benefits) for an item or service for a certain time through payment of

rent or wages without being followed by the transfer of ownership of the item itself.

Meanwhile, according to Bank Indonesia terms, ijarah is leasing for the benefit of an item

or service between the owner of the leased object and the lessee in order to obtain

compensation in the form of rent or wages for the owner of the object of lease (Djamil,

2012).

In the case of leasing a car, there is an agreement made between the lessee and the

lessee, the two parties bind themselves to achieve achievements as stated in article 1548 of

the Civil Code. An agreement entered into by the lessee with the lessor must comply with

the provisions of the procedure, so that the agreement can be carried out smoothly and carried

out according to the provisions applied by the lessor's regulations so that in the event of a

lease being legal in accordance with the law in Article 1320 of the Civil Code concerning

the terms of the validity of the agreement and nothing that is unwanted by both parties will

not happen in the future.

In a car rental agreement, the most important thing is an agreement made by both

parties consciously and without any pressure from anywhere. According to the agreement,

both parties must submit and comply with the contents of the agreement. If one of the two

parties does not fulfill an agreement or violates the agreement or enters into an agreement

but is not perfect, then the violating party is subject to sanctions in accordance with the

agreement. According to the contents of the agreement, if consensus deliberation can be

carried out, then existing disputes can be resolved peacefully and without interference from

third parties. However, if one of the parties does not want deliberation to reach a consensus

due to a large loss, this can be resolved through a trial at the local District Court or what has

been agreed beforehand.

Arrangements regarding ijarah in the compilation of sharia economic law are

contained in chapter X (Articles 251-290). The scope of the discussion includes: first,

discussing the pillars of ijarah consisting of; a) the lessor; b) the lessor; c) ijara objects; and

d) shighah contract ijarah contract must use clear sentences. Ijarah contract can be done

orally, in writing and or by gesture. The ijarah contract can be changed, extended and or

canceled based on the agreement. The ijarah contract can be enforced in the future.

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Second, explaining the terms of implementation and settlement of ijarah. To complete

an ijarah contract process, the parties to the contract must have the ability to carry out legal

actions. Ijarah contracts can be done face-to-face or remotely. The party who leases the

object must be the owner, representative or guardian. The use of ijarah objects must be stated

in the ijarah contract. If the use of ijarah objects is not stated with certainty in the contract,

then the ijarah objects are used based on general rules and habits. If one of the conditions in

the ijarah contract does not exist, the contract is cancelled. The ijarah money does not have

to be paid if the ijarah contract is cancelled. The reasonable ijarah price/ujrah al-mithl is the

ijarah price determined by an experienced and honest expert (articles 257-262).

Third, explain about the ijara money and how to pay it. Rental services can be in the

form of money, securities and or other objects based on an agreement. Rental services can

be paid with or without a down payment, prior payment, payment after the ijarah object has

been used, or payable based on an agreement. Ijarah advances that have been paid cannot be

returned unless otherwise specified in the contract. The down payment for the ijarah must

be returned by the lessor if the cancellation of the ijarah is made by the lessor. The down

payment for the ijarah does not have to be returned by the lessor if the cancellation of the

ijarah is made by the party who will rent it (articles 263-264).

Fourth, tells about the use of ijarah objects. The lessee can use the ijarah object freely

if the ijarah contract is carried out absolutely. The tenant can only use the ijarah object in a

certain way if the ijarah contract is carried out on a limited basis. Lessees are prohibited from

renting and lending ijarah objects to other parties except with the permission of the lessor.

Ijarah money must be paid by the lessee even if the ijarah object is not used (articles 265-

267).

Fifth, mentioning the maintenance of the ijarah object, responsibility for damage and

the value and period of the ijarah. Maintenance of the ijarah object is the responsibility of

the lessee unless otherwise specified in the contract. Damage to the ijarah object due to the

negligence of the lessee is the responsibility of the lessee, unless otherwise specified in the

contract. If the ijarah object is damaged during the contract period which is not due to the

lessee's negligence, the lessee is obliged to replace it. If the ijarah contract does not stipulate

the party responsible for damage to the ijarah object, then the customary law that applies

among them is made law. The lessee is obliged to pay for the damaged ijarah object based

on the time that has been used and the amount of the ijarah is determined through deliberation

(articles 268-270).

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Sixth, explaining the price and term of the ijarah. The value or price of ijarah, among

others, is determined based on the unit of time. The units of time in question are minutes,

hours, days, months and or years. The initial ijarah time is determined in the contract or on

the basis of custom. The ijarah time can be changed based on the agreement of the parties.

Excess time in ijarah carried out by the lessee must be paid based on agreement or custom

(articles 271-273).

Seventh, discussing the types of goods to be ijara and the return of ijara objects. The

object of ijarah must be halal or permissible. Ijarah objects must be used for things that are

justified according to the Shari'a. Any object that can be used as an object of sale and

purchase can be used as an object of ijarah. The object that is ijara may be the whole or part

of it that is stipulated in the contract. The additional rights of the lessee relating to the ijara

object are stipulated in the ijarah contract. If the tenant's additional rights are not stipulated

in the contract, the additional rights are determined based on custom (articles 274-275).

Eighth, discussing the return of ijarah objects. Ijarah ends with the completion of the

ijarah time specified in the contract. The way to return the ijarah object is based on the

provisions contained in the contract. If the way to return the ijarah object is not specified in

the contract, then the return of the ijarah object is carried out according to custom (articles

276-277).

Ninth, explained about ijarah Muntiyah bi al-tamlik. The pillars and conditions in

ijarah can be applied in the implementation of ijarah Muntiyah bi al-tamlik. In an ijarah

Muntiyah bi al-tamlik an object between the mu'jir/the party who rents it out and the

musta'jir/the lessee party ends with the purchase of ma'jur/the ijarah object by the

musta'jir/the lessee party. Ijarah Mutahiyah bi al-tamlik must be stated explicitly in the

contract. The transfer of ownership contract can only be carried out after the ijarah Muntiyah

bi al-tamlik period ends. Musta'jir/lessee in an ijarah Muntiyah bi al-tamlik contract is

prohibited from renting and/or selling the rented ma'jur/object. The ijarah price in the ijarah

Muntiyah bi al-tamlik contract is included in the payment of objects in installments.

Tenth, tells about sunduq hifzi ida'/safe deposit box. The use of sunduq hifzi ida'/safe

deposit box can be done with an ijarah contract. The use of sunduq hifzi ida'/safe deposit

box is subject to the provisions referred to in the pillars and conditions of ija>rah. Items that

can be stored in a sunduq hifzi ida'/safe deposit box are valuable objects that are not

prohibited or prohibited by the state. The amount of the ijarah sunduq hifzi ida'/safe deposit

box fee is determined based on the agreement in the contract. The rights and obligations of

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the lessor and the lessee are determined by agreement as long as they do not conflict with

the terms and conditions of the ijarah (articles 286-290).

The existence of an agreement that is made in detail and structured provides benefits

that can be felt by both parties. The agreement provides security for both parties because

they protect each other's rights and obligations. If an agreement is not held, it is likely that

many unwanted things will occur. In general, if there is no binding agreement, it will result

in arbitrariness of one of the parties, in car rental, if it is not regulated, the object of the

agreement can be recognized by the lessee as his own object (Nindito & Hartono, 2021).

In renting a car in this case, the lessor provides several options in providing the car

rental. They provide car rental with drivers and only provide car rental or also known as key

off. There are several conditions for renting a car, namely:

a. Register with the car rental company

b. Make an order according to the wishes of the tenant

c. Submit several files determined by the lessor for the lessee's guarantee in carrying

out the car rental

d. Inform the rules that have been set in writing and not in writing by the lessor and

the fines that will be paid if they break the rules

e. Then make transactions between tenants and lessees, whether it's a down payment

or DP or in cash.

f. And finally, giving the key along with the vehicle to be rented

2. Compensation

Responsibility is the obligation to bear everything if anything happens you can be

prosecuted, blamed, and sued. In legal language, responsibility is an individual's obligation

to carry out something that has been entrusted to him (Hamzah, 2005). Responsibility

according to the legal sense is a sense of belonging to someone regarding the nature or morals

of carrying out an action (Notoatmojo, 2014). Ta'wid in language is compensation,

compensation. In terms of the definition of ta'wid put forward by the contemporary scholar

Wahbah al-Zuhaili, Ta'wid (compensation) is covering losses incurred due to violations and

mistakes (Al-Zuhaili, 1998).

According to Syamsul Anwar, this concept in Islam focuses more on the rights and

obligations between the debtor and the creditor and according to compensation in Islam it is

only burdened by the debtor if the creditor is harmed by the debtor as a result of not carrying

out responsibilities or breaking a promise. Compensation is only imposed on the debtor who

breaks his promise if the loss experienced by the creditor has a causal relationship with the

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broken promise and broken contract with the debtor. The definition of loss according to R.

Setiawan is a real loss that occurs due to default. The amount of loss is determined by

comparing the state of wealth after default with the situation if there is no default (Setiawan,

1997).

The compensation includes replacement compensation and complementary

compensation. Compensation compensation is compensation resulting from non-

performance that should be the right of the lease, covering all losses suffered as a result of

the lessee's default. Meanwhile, complementary compensation is compensation as

appropriate (Hernoko, 2010).

In terms of compensation, this has been stipulated in Article 1234 of the Civil Code

which explains that the other party is obliged to pay for the loss of the injured party, namely

costs, losses and interest. The compensation has been adjusted according to the rules made

by the rental car, some of which have been written in the agreement and there is also verbal

notification. Regarding the rental car that makes an verbal agreement in terms of overtime,

usually if it is past the deadline, the rental car will contact the lessee reminding them to return

the car or sometimes come directly to the tenant's place of stay.

Compensation in the form of fines is given by the lessor to the lessee, because the

lessee violates the terms of the contract intentionally and causes losses to the lessor because

the lessee has defaulted. Lessees who default will be given sanctions in the form of a fine of

an amount of money, the amount of which is determined on the basis of the agreement and

is made when the contract is to be signed. Based on the Fatwa of the National Sharia Council

Number 43/DSN-MUI/VIII/2004 Concerning Compensation (Ta'widh), there are several

points that become specific provisions in compensation (ta'widh), namely:

a. Compensation received in transactions at LKS can be recognized as a right

(income) for the party receiving it;

b. The amount of compensation must remain in accordance with the real loss and the

method of payment depends on the agreement of the parties;

c. Whereas Islamic shari'ah protects the interests of all parties in a transaction, both

customers and LKS, so that no party's rights may be harmed;

d. That the losses actually experienced in real terms by the parties to the transaction

must be reimbursed by the party that caused the loss;

e. Compensation (ta`widh) may only be imposed on a party who intentionally or

negligently does something that deviates from the terms of the contract and causes

harm to the other party.

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f. The party whose promise is broken is responsible for the costs of the case and

other costs incurred as a result of the settlement process

3. Settlement Legal Remedies

In overcoming the obstacles mentioned above, both parties can take 2 ways, namely

through litigation and non-litigation. Litigation is a dispute resolution system through the

judiciary. Disputes that occur and are examined through litigation channels will be examined

and decided by a judge. Settlement through litigation is regulated in Law Number 48 of 2009

concerning Judicial Power. The lawsuit in this leasing case was caused because one of the

parties was harmed in the leasing. Settlement can be done by submitting to court with the

form of default made by the lessee, for example in the case of repeating the lease. With a

lawsuit in court, there must be a petitum requested by the plaintiff, including:

a. Requesting the tenant or the defendant to complete the leasing process;

b. Asking for compensation made by the tenant. If later, after undergoing trial and a

decision has been made by the judge and the contents of the decision approve the

petitum of the defendant, the plaintiff can carry out the contents of the decision on

condition that the decision made has permanent legal force.

This non-litigation settlement is carried out by negotiating between the tenant and the

lessor to do so and get a fair outcome. If one of the parties still does not want to make an

agreement, another non-litigation method is to use mediation and negotiation. Mediation is

an effort to resolve conflicts by involving a neutral third party, who does not have decision-

making authority that helps the disputing parties reach a settlement that is acceptable to both

parties. Negotiation is a form of social interaction when the parties involved seek to resolve

different and conflicting goals. Negotiation is a process in which two parties reach an

agreement that satisfies all interested parties with the elements of cooperation and

competence.

In the case under study, that one of the parties suffered a loss that was not in accordance

with the verbal agreement at the beginning. The lessee (consumer) feels disadvantaged as a

result of compensation made by the lessor (manufacturer). Because the lessor does not enter

into a contract that is not in accordance with the compensation specified.

In this case, the lessee made a default where the lessee did not return the car on time

due to conditions on the way that made it possible for the lessee to return home at the

appointed time. In the contract before using the rented car, the owner and the lessee make

an agreement where the owner says that if you are late in returning it, you will be fined 40

thousand per hour. The owner did not explain if it was past 00.00 WIB that the calculation

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would be different, no longer subject to an hourly fine, but calculated as a full day's rent.

Obviously the lessee feels disadvantaged, because it is not in accordance with the verbal

agreement at the beginning of the contract.

So in this case, the lessor made a mistake against the lessee in carrying out

compensation fines resulting from an oral agreement, because the initial contract was not in

accordance with the fine given to the lessee. The lessor should explain in detail before

entering into a contract with the lessee so that there is no misunderstanding between one

another and so that the contract being executed is clear in accordance with existing

regulations and does not harm any party.

In resolving this case, both parties agreed to resolve this case using non-litigation legal

remedies. Where both parties resolve it in a peaceful and amicable way and do not proceed

to litigation. From the lessee (consumer) provide half of the compensation determined by

the lessor (manufacturer)

CONCLUSION

The conclusion in this study is that there was a default by the producer. As a result of

an unwritten or oral agreement made by both parties, one party feels disadvantaged because

the agreement is not valid enough to prove. The legal remedies taken by both parties were

using non-ligitimation legal remedies, which were resolved amicably. Where the consumer

provides compensation for half of the compensation price given by the producer, and is

carried out by mutual agreement.

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