Comparison of At Taflis Wal Hajr in Islamic Law and Bankruptcy in Positive Law

Abstract

Bankruptcy can not be separated from business interactions. The bankruptcy concept arises from the background of debtors who no longer pay their debts due to their inability so that the state provides a means to resolve such disputes in the form of bankruptcy institutions. The bankruptcy institution is legal protection form for debtors, creditors and the public where creditors rights can be fulfilled proportionally. The bankruptcy institution is also known in Islamic law which is referred to as At Taflis Wal Hajr. Research on concept of At Taflis Wal Hajr which is known in Islamic law is motivated by the development of sharia business which is quite significant and massive today. Therefore, it is necessary to study to understand the concept of At Taflis Wal Hajr and bankruptcy to find the similarities and differences for the two legal concepts. To answer these problems legal research methods are used using conceptual and comparative approach. In Islam, there are several terms known as taflis, iflas, muflis, and hajr. The four concepts are the translation of At Taflis Wal Hajr or in positive law is called bankruptcy. Al - Taflis means the condition of person who runs out of assets until there is nothing left for him that can be used to pay his debts. Iflas, which means no money at all. People who are bankrupt in Islam are called muflis. Al-Hajr is forbidding someone to convert their property. From sunnah of the Prophet, Abu Sa'id al Khudri, and Caliph Umar bin Khatab it can be concluded that in resolving civil disputes related to debts that have not been paid by the debtor, it is necessary to intervene directly from the state or authorities by the judge to determine the state of taflisfor the debtor and the application of Hajr to him through the judgedecision. This is similar to the arrangement bankruptcy in law - bankruptcy law and suspension of debt payment where there are debtors that unable to pay debts, it can be filed bankruptcy petition to the commercial court and decided by judge that prohibits debtors to spend their treasure and debtor treasure will be ordered to be distributed to the creditors.