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Sales Fatawa / Uncertainty with maintenance and servicing contracts.

Uncertainty with maintenance and servicing contracts.

publish date : 2016-03-24 | Views : 2895
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Maintenance and servicing contracts have become widespread in many governmental departments. This presents competition among companies to maintain buildings, clean cities or do similar work. Companies visit the tendering website and read about the job and equipment required, contracts for specialized ancillary services and other field work required. These companies then evaluate the work, expected costs and the desired profit if they decide to bid – in other words, the owner of the company calculates a minimum profit that should be obtained. These companies then submit their offers and the government department gives the contract to the least charging company. The role of the commercial contractor is seen here whereby the contractor seeks to maintain and service the facilities at a lower price at the same time getting appropriate net profit. Here is the question: The contractor might spend huge amounts of money which were not taken into account at time of contacting and end up operating at a loss, or the work might finish without the contractor having to spend the agreed amount of money. What is your opinion on this?

الغرر في عقود الصيانة والتشغيل

Praise be to Allah, and may Allah’s peace and blessings be upon the Messenger of Allah, his family and his companions.

To proceed:

Maintenance contracts are divided into two:
First: Periodic precautionary maintenance contracts. The contracting parties agree that the contractor will inspect the facility to ensure its safety, operational continuity, fitness, quality of performance and to replace some parts which are damaged as a result of usage. This is all done according to a specific timetable and agreed deadlines. This type of contract is permissible because the principle on transactions is that they are permissible. The uncertainty involved in these contracts is excusable due to the need calling to such contracts.
Second: Unexpected occurrence maintenance contracts. The contracting parties agree that the contractor will repair and fix malfunctions, breakdowns and faults that develop on certain parts of the facility. This is not devoid of two cases:
One: Agreeing that the contractor will do maintenance work.
Two: Agreeing that the contractor will do all what it takes to repair the unexpected defect.
The contract is permissible in the first case but in the second case it is not permissible because of excessive uncertainty involved which makes the contract a form of gambling that is forbidden by the Quran, Sunnah and scholarly consensus.

Your brother,

Dr. Khalid al-Mosleh

13 / 11 / 1424 AH

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