The Curious Case Of The Double Sale: Reconciling The BBA Transaction With Section 214A Of The National Land Code

• Published date: 22 September 2021
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Real Estate and Construction, Financial Services, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate, Islamic Finance
• Law Firm: SKRINE
• Author: Guan Huat Khoo, Ratha Govindasamy and Ng Kar Man

In the recent case of Maple Amalgamated Sdn Bhd & Anor v Bank Pertanian Malaysia Bhd [2021] MLJU 1245, the Federal Court had to consider the following leave question:

'Whether an unconditional agreement for the sale and purchase of an estate land by way of asset purchase agreement and asset sale agreement ('Asset Sale & Purchase Agreements') pursuant to Bai Bithaman Ajil financing is in breach of section 214A of the National Land Code 1965 when no prior approval is obtained from the Estate Land Board before entering into the said Asset Sale & Purchase Agreements?'

The Federal Court led by Chief Justice Tengku Maimun answered the leave question in the negative and held that a Bai Bithaman Ajil Islamic financing transaction does not contravene section 214A of the National Land Code ('NLC'). In the course of doing so, the Federal Court revisited its findings in Gula Perak Bhd v Datuk Lim Sue Beng & other appeals [2019] 1 CLJ 153 ('Gula Perak').

WHAT IS A BAI BITHAMAN AJIL FACILITY?

To appreciate the reasoning behind the leave question posed to the Federal Court in this case as well as the Federal Court's resulting decision, it is imperative to go back to the basics and break down the components of a Bai Bithaman Ajil ('BBA') financing facility, i.e. a sale with deferred payment of the price, and consider how it differs from a conventional loan.

As a starting point, Islamic financing facilities are never referred to as 'loans' for the simple reason that the practice of moneylending with the imposition of interest (riba) is prohibited (haram) under Shariah law as it is considered to be exploitative. Thus, financial institutions have come up with various Islamic financing 'products' such as the BBA facility, in which financing can be given by banks in a manner which does not breach Shariah laws.

In a typical BBA financing transaction, the bank and the customer (the borrower in a conventional loan) would execute an Asset Purchase Agreement ('APA') and an Asset Sale Agreement ('ASA') simultaneously. Under the APA, the bank is said to have 'purchased' an asset from the customer, which it then immediately 'sells back' to the customer via the ASA on a deferred payment basis, at a sale price which includes a profit margin for the bank - thus the concept of 'double sale' is born.

The purchase price for the 'purchase' under the APA is paid by the bank to the customer forthwith or upon satisfaction of the conditions precedents, whilst the repurchase price for the...