Istisna´a, is a special kind of sale contract where a sale is transacted before the goods come into existence. It is a contract culminating in a sale at an agreed price, paid in advance, whereby the buyer places an order for the manufacture, assembly or construction, items to be delivered at a future date. The object of an Istisna´a contract should not be an identified asset which is already in existence and immediately available. The items must be specified to the extent of removing any ignorance, doubt or lack of knowledge of their kind, type, quality and quantity. In istisn’a transactions the buyer cannot before taking possession (actual or constructive) of the goods, sell or transfer ownership of the goods to any other person or party. Istisna´a is invalid for natural things or products that are not manufactured, such as animals, corn, fruits, etc
It is not necessary that the seller should be the manufacturer of the goods. The seller may enter into a contract with a third party to manufacture the goods specified in the Istisna´a contract. On this basis, banks may undertake financing based on Istisna´a by getting the subject of istisna´a manufactured through another such contract. Thus, Islamic banks can serve both as manufacturers and purchasers (see section on parallel istisna’a). Istisna´a can be used to provide the facility for financing the manufacture of goods or the construction of houses, plants, projects, bridges, roads, and highways, etc. The istisna´a contract can also be drawn-up for real estate developments on designated land owned either by the purchaser or the contractor, or on land in which either of them owns the usufruct. It involves the construction of specified buildings that will be built and sold according to specifications and, in this case, the contract of istisna´a does not specify a particular, identified place.
Where Istisna´a is used in manufacturing, the manufacturer will arrange the procurement of the materials for both manufacture and labour. If the materials for manufacture are supplied by the buyer and the manufacturer is required only to provide the labour and expertise, then it will be considered as a contract of ujrah (the financial charge, such as the agreed wage /remuneration, for using services and not of istisna´a where the material required also has to be provided by the manufacturer). It is not always necessary in istisna´a for the full price to be paid in advance (unlike in salam, where spot payment of the price is necessary). The price may be paid in instalments within a fixed time period. Against the general rule applicable for salam, the contemporary Islamic scholars have legalised instalment payments in istisna’a based on istihsan (juristic "preference” over strict analogy.
The buyer in istisna´a is not regarded as the owner of the materials in the possession of the manufacturer for the purpose of producing the object of istisna’a contract, unless the manufacturer has previously guaranteed that such materials will only be utilised to fulfil the contract with the buyer. This form of guarantee will only be enforced in the event that the manufacturer has requested the buyer to pay part of the price in advance for acquiring some of the materials needed.
Potential of Istisna´a
Islamic banks can use istisna´a for manufacturing high technology goods such as aircrafts, ships, buildings, dams, high ways, etc. It can also be used for housing, export financing and meeting working capital requirements in industries where sale orders are received in advance. The potential areas for the application of istisna’a are indicated below:
• To finance the construction of buildings, factories, hospitals, schools and universities.
• Housing finance schemes
• To finance high technology industries such as the aircraft, locomotive and shipbuilding industries, and the various types of machines produced in big factories or workshops.
• To finance various industries where their productions can be monitored by measurement and specifications, such as in the food processing industry.