Greenation International Journal of Law and Social Sciences
Vol. 3 No. 1 (2025): (GIJLSS) Greenation International Journal of Law and Social Sciences (March 202

Shifting the Burden: Reverse Proof in Shirkah under Islamic Law

Moh Ahza Ali Musthofa (Universitas Sebelas Maret, Surakarta, Indonesia)
Burhanudin Harahap (Universitas Sebelas Maret, Surakarta, Indonesia)
Hari Purwadi (Universitas Sebelas Maret, Surakarta, Indonesia)



Article Info

Publish Date
21 May 2025

Abstract

This study examines the concept of reverse burden of proof in musharakah dispute resolution in Indonesia. Musharakah, as a profit and loss sharing-based Islamic economic instrument, faces the challenge of information imbalance between active and passive partners, which disadvantages passive partners in proving loss disputes. This normative research uses statutory, conceptual, and case study approaches to court decisions. The results show that Fatwa DSN-MUI No. 105/DSN-MUI/X/2016 introduces a new norm that allows the manager to guarantee the return of capital if the loss is caused by negligence, exceeding limits, or violating the terms of the contract. This concept is in line with the principle of strict liability and is supported by several scholarly views based on 'urf, tuhmah, maslahah, and dal?lat al-??l. The case study shows that the manager can prove that the business loss did not result from bad faith. The application of the reverse burden of proof in musharakah disputes is important to achieve justice and address information imbalance.

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Journal Info

Abbrev

GIJLSS

Publisher

Subject

Law, Crime, Criminology & Criminal Justice Social Sciences

Description

Greenation International Journal of Law and Social Sciences (GIJLSS) is a journal that uses a blind peer-review model that can be accessed online. GIJLSS aims to publish a journal containing quality articles that will be able to contribute thoughts from theoretical and empirical perspectives for the ...