The Legality of a Comprehensive Maintenance contract between Al-Gharar (Risk/Uncertainty) and Jurisprudential Need: An Analytical Purposive Study.
The comprehensive maintenance contract is a type of contemporized contracts to which the general rules of contracts apply. Under the contract, one party has the obligation, periodically and in emergency cases, to perform the necessary acts to keep a certain property in a good condition for its use. The contract also states the agreed wages, tools and raw materials.
Many scholars have been reluctant to rule for the legality of the comprehensive maintenance contract because it involves uncertainty. This led the Islamic Fiqh Academy to postpone its ruling on the contract for more studies. Therefore, this research analyses the effect of uncertainty in maintenance contracts, and concludes that uncertainty is tolerated if it is insignificant or if justified by necessity. This research also shows that standardized maintenance contracts, conditions and appendices, as well as the legal regulation of contracting works and the observed customs, indicate that uncertainty in comprehensive maintenance contracts is insignificant and causes no dispute. The research addresses jurisprudential evidences from the four schools of Sunni Islamic jurisprudence that resolved contracts involving uncertainty, concluding that determining the standard of uncertainty, whether insignificant or significant, is attributed to experts. The research further addresses the effect of jurisprudential necessity for legalizing maintenance contracts, differentiating this type of necessity from that under the technical definition by scholars.
The rule stating “what is prohibited to prevent excuse is permitted for preponderant interest” is a cornerstone of comprehensive maintenance contracts. This is because the impermissibility of uncertainty results from forbidding the means that cause dispute between the parties. Thus, because interest is preponderant, while the blight of uncertainty is probable, comprehensive maintenance contracts would be permitted for such preponderant interest. In addition, the generalization of the prohibition of uncertainty is unsupported, evidenced by its particularization to the tradition on lease, sharecropping, and the like. Therefore, as uncertainty could be the basis for prohibition to prevent excuse, it could also be the basis for permissibility to achieve preponderant interest.
"The Legality of a Comprehensive Maintenance contract between Al-Gharar (Risk/Uncertainty) and Jurisprudential Need: An Analytical Purposive Study.,"
UAEU Law Journal: Vol. 2019:
78, Article 4.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2019/iss78/4