Professional Documents
Culture Documents
SH 5053 Webinar 4
SH 5053 Webinar 4
AND
LEGAL DOCUMENTATION
FOR
ISLAMIC FINANCIAL
SERVICES
1. LEGAL DOCUMENTATION
2. TYPES OF SECURITY
3. REQUIREMENTS OF LEGAL DOCUMENTATION
4. THE QUR’AN ON DOCUMENTATION
5. PARTS OF AN AGREEMENT
1. LEGAL DOCUMENTATION
LEGAL DOCUMENTATION
• Security Documents
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LEGAL DOCUMENTATION
FACILITY AGREEMENT
• Defines the method of financing.
• Incorporates all terms and conditions for the
facility as stated in the Letter of Offer.
• Templates of aqad transactions according to
the Shariah principles will be attached in the
Attachment parts.
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LEGAL DOCUMENTATION
SECURITY DOCUMENTS
• Securities will be provided based on the
nature of the project/contract financed by the
bank.
• Sometimes, it requires involvement of third
parties under the project/contract.
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LEGAL DOCUMENTATION
Example:
ISTISNA’ FACILITY
• Financing Documents:-
1. Istisna’ Agreement
2. Settlement Undertaking
9
LEGAL DOCUMENTATION
Example:
IJARAH FACILITY
• Financing Documents:-
i. Purchase Agreement
ii. Ijarah Agreement – Main and to be stamped ad valorem
iii. Service Agency Agreement
iv. Purchase Undertaking
v. Sale Undertaking
vi. Security Documents 10
LEGAL DOCUMENTATION
Example:
Example:
TAWARRUQ FACILITY
• Financing Documents:-
i. Facility Agreement - Main and to be stamped ad valorem
ii. Requisition Form
iii. Murabahah Sale Agreement
iv. Agency Agreement
v. Security Documents 12
LEGAL DOCUMENTATION
Example:
MURABAHAH FACILITY
• Financing Documents:-
i. Facility Agreement - Main and to be stamped
ad valorem
ii. Requisition Form
iii. Security Documents 13
LEGAL DOCUMENTATION
Example:
• In Lien Chung Credit & Leasing Sdn Bhd v. Chang Chin Choi
(1994), High Court, it was held that the word ‘security’ would
seem to imply something which the creditor could resort to in
order to aid him in realising or recovering the debt, in case the
debtor failed to pay.
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LEGAL DOCUMENTATION
The following are the types of security normally taken by banks to secure a financing facility:
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TYPES OF SECURITY
- Types of Land
• Leasehold, which means the land is granted by the state authority for a
term of years (not exceeding 99 years) and when that period expires the
state authority can take back the land, or grant a renewal of lease.
• Malay reserved land and customary land, which are reserved only for the
Malay race and can be transacted only between members of the Malay race.
• Native land, which applies to land in Sabah and Sarawak and can only be
transacted between natives.
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TYPES OF SECURITY
- Types of titles
There are two types of land titles: final title and qualified title.
Both titles can be registered at the Land Registry of the State
(Registry) or the Land Office. A Registry title is evidenced by a
grant or state lease, or by any document of title registered in a
Registry. A Land Office title is evidenced by a "mukim" grant or
"mukim" lease, or by any document of title registered in a Land
Office.
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TYPES OF SECURITY
- Definition of “Land”
1. CHARGE
• In a case whereby the separate document of title to the land in question has been issued, the
customer will create charge over the land belonging either to the customer or to a third party in
favour of the bank.
• The charge is a formal document taken under the National Land Code 1965 and registered at
the appropriate land office. If there is default in the payment of the amount due at the due
date, the land will be sold by a process of public auction under a court order and the amount
realised on the sale will be used to pay the bank (chargee); any surplus amount will be paid to
the customer (chargor). (See generally Sections 241 to 269 of the National Land Code 1965.)
• Additionally, the charge must be lodged with the Companies Commission for registration within
30 days after the creation of the charge. If this is not done the charge will be void against the
liquidator and any creditor of the company.
• In countries with different land law system, security over land is taken by a mortgage.
• If there is default, there will be foreclosure of the right of redemption of the mortgaged land
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and the land will be sold.
TYPES OF SECURITY
- Assignment
2. ASSIGNMENT
• In a case whereby the separate document of title to the
land in question has yet to be issued, the customer will
create an assignment over the land belonging either to the
customer or to a third party in favour of the bank.
• It is an assignment of the right, title and interest in land of
the assignor to an assignee (e.g. bank) as security for a
facility granted by the bank to the assignor.
• The assignment contract does not require registration at
the Land Office.
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TYPES OF SECURITY
- Assignment
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TYPES OF SECURITY
- Lienholder caveat
3. LIEN
The term ‘lien’ signifies a right to hold the property of another as
security for the performance of an obligation. The word ‘lien’ can be
understood to be the right of a bailee to retain the possession of a
chattel entrusted to him until his claim upon it is satisfied. A bank
may create a lienholder caveat as security to its advances to enforce
its claim upon the land until the debt is repaid. This is recognised in
the National Land Code. A lienholder’s caveat is a notice to third
parties that the land is encumbered by that lien. A lien is a form of
security. Its effect is to prohibit further dealings on that land. A
common law lien lasts only so long as possession is retained, but
while it lasts it can be asserted against the whole world.
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TYPES OF SECURITY
- Lienholder caveat
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TYPES OF SECURITY
- Why Land?
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TYPES OF SECURITY
- How to enforce?
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TYPES OF SECURITY
- Discharge of Charge
• Motor vehicles
• Stock-in-trade
• Equipment
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TYPES OF SECURITY
-Tangible movable property
The most common forms of security over tangible movable property are:
Mortgages:
• An application to enter an aircraft mortgage in the Aircraft
Register must be made in the prescribed form and accompanied
by a certified true copy of the mortgage. A security interest in
an aircraft and aircraft engine falling within the scope of the
Convention on International Interests in Mobile Equipment and
the Protocol to the Convention on International Interests in
Mobile Equipment on Matters Specific to Aircraft Equipment,
may be registered in the International Registry.
• A ship mortgage must be made in the prescribed form and
presented for registration at the ship's port of registry whereby
the mortgage is recorded in the register book.
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TYPES OF SECURITY
-Tangible movable property
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DEBENTURE
TYPES OF SECURITY
Debenture - Definition
41
TYPES OF SECURITY
Debenture - Definition
(iii) Until such time that the lender takes steps to enforce his security, the
company is free to deal with the assets in the ordinary course of business.
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FORM 34
TYPES OF SECURITY
- Requirement for registration
• The contest for priority is between the floating charge given to Bank B
and the fixed charge given to Bank A. The general rule is that as
between a floating charge and a fixed charge, the fixed charge has
priority even if the fixed charge was created subsequent to the floating
charge.
• This arises from the fact that a holder of a floating charge impliedly
permits the company to deal with the assets charged. The fact that the
fixed chargee knew of the existence of the earlier floating charge is
immaterial (see United Malayan Banking Corporation v Aluminex (M)
Sdn Bhd (1993)). This is one of the disadvantages of the floating charge
as a form of security. 52
TYPES OF SECURITY
- Priority of Charges
• If 2 fixed charges are created on the same property and both charges have
been registered, the fixed charge which is created earlier is in priority to the
fixed charge which is created later.
• If 2 floating charges are created on the same property and both charges
have been registered, the floating charge which is created earlier is in
priority to the floating charge which is created later.
• If 2 charges are created on the same property and both charges have not
been registered, then the charge which is created first is in priority.
• If there is a fixed charge and a floating charge on the same property, the
fixed charge is in priority.
• If the floating charge is supported by a negative pledge clause and it is
registered, then the floating charge is in priority to the fixed charge
provided the holder of the fixed charge had notice of the negative pledge.
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TYPES OF SECURITY
- Negative Pledge
• Thus, as a general rule, the fixed charge given to Bank A will have priority
over the floating charge given to Bank B unless Bank A had notice of the
negative pledge which was inserted into Bank B’s floating charge.
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TYPES OF SECURITY
- Disadvantages of floating charge
• Floating charges:
The disadvantages of floating charges as a form of security are
summarised below:
(i) The value of the security will be uncertain as the company is free
to deal with the assets in the ordinary course of business.
(ii) The floating charge ranks lower in priority in comparison with a
fixed charge over the same assets, even if the floating charge was
created before the fixed charge, unless the floating charge restricts
the creation of subsequent charges ranking in priority to the
floating charge and the subsequent fixed chargee has notice of it.
(iii) Assets subject to a floating charge may themselves be subject to a
retention of title clause in favour of a seller of goods. In such a
case, if the chargor had not paid for the goods, the seller of the
goods may be entitled to those goods and the floating chargee
would have no claim to them.
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TYPES OF SECURITY
- Disadvantages of floating charge
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TYPES OF SECURITY
- Prohibition on subsequent charges
• Express notice in writing of the assignment must be given to the debtor, trustee
or other person from whom the security provider would have been entitled to
claim the debt or chose in action.
• The assignment must be absolute and not purporting to be by way of charge only.
a. Examine the policy closely, which includes taking note of the name of the
insurance company.
b. Consider whether the bank is satisfied with the financial strength of the
insurance company.
c. Take note on the special conditions attaching to the policy such as suicide
clause, a clause limiting the amount recoverable in the event of death.
d. Check whether the insurance policy is still in full force and effect.
f. Check whether the bank has ever received any other notice of assignment. 69
CASH DEPOSITS
TYPES OF SECURITY
- Cash Deposits
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TYPES OF SECURITY
- Pledge of Shares
The formalities for creating security over financial instruments are as follows:
Certificated and non-certificated shares, and debt securities. A fixed charge over the shares or debt securities
and assignment of the rights and interests in and to such shares and debt securities (for example, dividends,
interest or coupon) is the most common way of creating security. It is in writing and created by both security
provider and security holder entering into a document evidencing the charge cum assignment.
• Certificated shares. The security holder usually requires custody of the original share certificates and an
executed but undated share transfer form (in prescribed form) from the security provider with the
transferee details left blank. When the security is enforced, the security holder can transfer the title of
the shares to itself or a nominee by exercising powers of attorney granted by virtue of the charge
instrument.
• Non-certificated (listed) shares. The shares are transferred from the securities account of the security
provider to the securities account of the security holder. This account is established to receive the
charged shares and is designated a ‘pledged securities account’ in accordance with the Securities Industry
(Central Depositories) Act 1991.
• Debt securities. For non-certificated debt (listed) securities, security is created in the same way as non-
certificated (listed) shares.
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TYPES OF SECURITY
- Shares and Debt Securities
Private debt securities (PDSs) and Malaysian Government Securities (MGSs) are
recorded and maintained with the Malaysian Electronic Clearing Corporation Sdn Bhd
(MyClear). MyClear is a subsidiary of the central bank (Bank Negara Malaysia), which
provides among others securities depository services for PDSs and MGSs. The security
over PDSs or MGSs is usually created via a charge cum assignment. Only certain users,
such as issuers of PDSs or the facility agent for an issue or Scripless Securities
Depository System (SSDS) Participants (entities, usually financial institutions, which are
permitted to hold PDS and MGS for their own account and on behalf of their
customers) can use the MyClear systems (for example, Real-time Electronic Transfer of
Funds and Securities [RENTAS] and Fully Automated System for Issuing/Tendering
[FAST]). Therefore, the security holder should be an SSDS Participant in order to hold
the security. If it is not, then an SSDS Participant must be appointed as security agent.
However, as PDS and MGS are usually subscribed by financial institutions, it is not
common for security to be created over these debt securities. Where the debt
securities are listed, security may be created by the holder in the same way as for non-
certificated (listed) shares.
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GUARANTEE
TYPES OF SECURITY
- Guarantee
The bank must obtain the guarantor’s consent for any changes or variation made to the
terms of the contract. If not, the guarantor will be discharged from any liability towards the
bank.
If the principal debtor is discharged or released from any liability, the guarantor will also
not be liable for the liability.
c. When the creditor compounds with, gives time to, or agrees not to sue the principal
debtor
Unless the guarantor agrees to such contract, the guarantor will be discharged from the
liability.
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TYPES OF SECURITY
- Guarantee
The guarantor will be discharged if the conduct of the bank is inconsistent with the rights of the guarantor and
which such conduct impairs the guarantor’s eventual remedy against the principal debtor. For instance, a debt
is supposed to be paid by way of instalment payments according to stages of construction. Without the
guarantor’s knowledge the debt was fully paid in advance by the principal debtor. In such a situation, the
guarantor will be discharged from the liability.
If a bank has released the security which is fundamental to the contract, then the guarantor will be discharged
from the liability. This is because the release of the security has prejudiced the guarantor.
f. Death of guarantor
Upon the death of a guarantor, the guarantee contract will be terminated. No claim can be made against the
estate of the deceased. However, claims can continue to be made towards the other co-guarantors.
• However, the guarantor will remain liable if there is an express provision in the guarantee
contract to allow variance in the terms of contract etc. without the guarantor’s knowledge
etc.
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INTELLECTUAL PROPERTY
TYPES OF SECURITY
-Intellectual property
• Industrial designs
• Patents
• Trade marks
• Copyright
91
TYPES OF SECURITY
-Intellectual property
• Assignment
• Fixed charge
92
TYPES OF SECURITY
-Intellectual property
• A registered industrial design can be the subject of a security interest in the same way as other
personal or movable property (section 29(5), Industrial Designs Act 1996). An assignment of a
registered industrial design is not effective unless it is in writing and signed by or on behalf of the
assignor and the assignee. The assignee must then apply to the Registrar of Industrial Designs to
record his interest in the register.
• There is no equivalent legislation for patents, trade marks and copyright. It appears that similar
legislation to the Industrial Designs Act has been proposed and is in the drafting stage; however, it
is many years away from becoming law.
• If a charge is created on the goodwill; a patent, a trade mark, a copyright or licence under a patent,
a trade mark, a copyright, the charge must be lodged with the Companies Commission for
registration within 30 days after the creation of the charge (Companies Act). (It is presumed this is
in anticipation of legislation being passed eventually to enable security to be created over
intellectual property.)
• Intellectual property as a separate security class has not to date been generally taken as security in
Malaysia. It is most commonly captured by debentures creating fixed and floating charges over the
assets of the party providing the debenture.
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PLEDGE
TYPES OF SECURITY
- Pledge
(iii) must be stamped (or exemption from stamp duty obtained) and
registered (where necessary) with the appropriate authority.
Stamping is a revenue matter and if a document that is required to be
stamped is not stamped it would not be admissible in court as
evidence until it is duly stamped. But not stamping a document does
not make it void or voidable.
(iv) Certain documents are required by law to be filed/registered with
certain governmental authorities, for example, the creation of a
charge on land must be registered with the land office otherwise the
charge will not be regarded as a valid charge on the land and the
intended chargee will not be a secured chargee. Any charge created
by a company on its property must be registered with the Companies
Commission otherwise the charge will not rank as a secured chargee.
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REQUIREMENTS OF LEGAL DOCUMENTATION
When the terms of a contract or of a grant or of any other disposition of property have
been reduced by or by consent of the parties to the form of a document, and in all
cases in which any matter is required by law to be reduced to the form of a document,
no evidence shall be given in proof of the terms of the contract, grant or other
disposition of property or of the matter except the document itself, or secondary
evidence of its contents in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
When the terms of any such contract, grant or other disposition of property, or any
matter required by law to be reduced to the form of a document, have been proved
according to section 91, no evidence of any oral agreement or statement shall be
admitted as between the parties to any such instrument or their representatives in
interest for the purpose of contradicting, varying, adding to, or subtracting from its
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terms.
INTRODUCTION TO BASIC PRINCIPLES OF LEGAL DOCUMENTATION
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PARTS OF AN AGREEMENT
The part of the agreement where the date is entered and the parties are
described is called the commencement. The date is an important part of the
agreement as otherwise there will be no reference point for doing certain acts,
e.g. if the agreement stipulates that payment should be made within 60 days of
the date of this agreement. The parties should also be correctly described; if
this is not done, unnecessary disputes could arise as to the identity of the
parties. In Malaysia it is common to include the identity card number (MyCard
number) or, if a party to an agreement is a foreign party, the passport number,
after the name so as to remove any ambiguity as to the identity of the party
concerned, e.g. there could be more than one person by the name of Ali bin
Shamsudin. So if there is an agreement between Ali bin Shamsudin and another
party it would not be immediately apparent which Ali bin Shamsudin is the
party to the agreement.
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PARTS OF AN AGREEMENT
EXAMPLE
BETWEEN
ISLAMIC FUTURE BANK BERHAD (Company No.: 7890-W) a company incorporated in Malaysia under the
Companies Act 1965 with its registered office at 10th Floor, Menara Future, Jalan Hadapan, Hartamas
Perdana, 45601 Kuala Lumpur (hereinafter referred to as “Future Bank”) of the one part;
AND
ABCD SDN BHD (Company No. 1234-S), a company incorporated under the laws of Malaysia under the
Companies Act 1965 and having its registered and business address at 20th Floor, Jalan Cemerlang,
Taman Bandaraya, 43300 Kuala Lumpur (hereinafter referred to as the “Customer”) of the other part.
(Future Bank and the Customer are hereby collectively referred to as “Parties” and individually shall be
referred to as “Party”, as the context may require).
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PARTS OF AN AGREEMENT
2. RECITALS (PREAMBLES)
These are narratives of the background to or the purpose of entering
into the agreement. These are not a legally necessary part of the
agreement but are included to set out the intention of the parties
and, if the need should arise, as an aid in the construction of
ambiguous provisions in the agreement. It would operate to restrict
the meaning of general statements used in the body of the
agreement to the real purpose of the agreement.
The recitals also serve to give a reader of the agreement, e.g. a judge
or an arbitrator, some background information as to why the parties
entered into the agreement so that the judge or arbitrator could
more fairly construe the agreement. 114
PARTS OF AN AGREEMENT
2. RECITALS (PREAMBLES)
EXAMPLE
WHEREAS:
A. Application for the Facilities
The Customer has requested and Islamic Future Bank has agreed under the terms of its letter of offer dated
__________ (Ref. No.: __________) (hereinafter referred to as the “Letter of Offer” which expression shall include
any supplemental letter of offer and any amendments, modifications and variations thereto) to grant and make
available to the Customer the following financing facilities:-
(i) the Term Financing-i (“TF-i”) under the Shariah principle of Tawarruq of up to the maximum aggregate amount
of Ringgit Malaysia _________ Million (RM__________.00) only; and
(ii) the Bridging Financing-i (“BF-i”) under the Shariah principle of Tawarruq of up to the maximum aggregate
amount of Ringgit Malaysia __________ Million (RM________.00) only; and
making a total aggregate amount of Ringgit Malaysia _____________ (RM_________.00) only (hereinafter
collectively referred to as the “Facilities” and individually as “TF-i”and “BF-i” respectively).
B. Purpose: The parties have agreed for the Facilities shall be utilised by the Customer for the purposes as
stipulated in Clause 2.2 herein and in accordance with the terms and conditions of the Transaction Documents (as
defined herein).
C. Agreement: The Parties hereby agree to enter into this Agreement to set out the terms and conditions for the
115
Facilities subject to the terms and conditions of this Agreement and the Transaction Documents.
PARTS OF AN AGREEMENT
2. RECITALS (PREAMBLES)
Take note that the recitals must but be
informative and not to put operative clauses in
them.
For example, to state that “Party(1) has agreed
to…“ and not to state that “party(1) “shall
provide…”.
This is bad drafting and should be avoided. 116
PARTS OF AN AGREEMENT
123
PARTS OF AN AGREEMENT
SCHEDULE 1
CONDITIONS PRECEDENT
(referred to in Clause 3.1 of this Agreement)
125
ENFORCEMENT OF
SECURITY
ENFORCEMENT OF SECURITY
• Any disposition of the company's property made after the commencement of the winding-up by the court
is void unless the court orders otherwise.
• Any transfer, mortgage, delivery of goods, payment, execution or other act relating to property made or
done against a company within six months before the presentation of the winding-up petition may be
deemed fraudulent and void if the transfer (and so on) is intended to give a preferential status to any
creditor. Property disposed of may be "clawed back" by the liquidator of the insolvent company.
• A floating charge on the undertaking or property of the company created within six months of the
commencement of the winding-up is invalid unless it is proved that the company was solvent immediately
after the creation of the charge.
• A liquidator can challenge a transaction that was made at an undervalue in the purchase or sale of any
property, business or undertaking for a cash consideration entered into by a company where both:
1. The transaction was with any person who was a director of the company, or with whom a director was so
connected, within a period of the two years immediately preceding the date of commencement of winding-up
of the company.
2.The value of the consideration received by the company is less than the value of the consideration provided
by it.
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