International Construction Law Review
ISLAMIC JURISPRUDENCE: CAN FIDIC PREVENT GHARAR INFECTING A CONTRACT?
SHAUN CRAWLEY*
Robert Gordon University, Aberdeen, Scotland
Introduction
This article examines how the mechanics of extension of time and additional payment clauses in FIDIC1 forms of construction contracts, employer’s design, negate the effect of gharar with particular regard to and including whether such clauses are compliant to the relevant Articles of Federal Law No 5, the Civil Transaction Code of the United Arab Emirates as amended by Law No 1, 1987. This is done by identifying how gharar can infect a construction contract, reviewing the applicable laws that apply in respect of a construction contract and then the relevant provisions of FIDIC99.
Islamic jurisprudence (Fiqh)
Jurisprudence, “fiqh”, is the knowledge and classification of the corpus of laws which makes up the various branches of Islamic law2
(Shari’ah) as deduced from the four main sources,3 the injunctions of Allah (God) set out in the Qur’an as revealed by divine revelation to the Prophet Mohammed (pbuh), the Sunnah of the Prophet4 which explains and expands on the application of such injunctions through the living tradition of the Prophet, Ijmāc (consensus) of Muslims, and Ijtihād.
5 The first three are the material sources whilst the latter is part of the process applied to deduce the law as
* BSc, LLM, PG (Res), FCI Arb, FRICS, FCIOB, AMAE.
1 FIDIC First Edition, 1999 Conditions of Contract, Construction for Building and Engineering Works Designed by the Employer, the Red Book (FIDIC99).
2 H J Liebesny, The Law of the Near & Middle East, Readings, Cases, and Materials (1st ed., New York, 1975) (hereafter Liebesny), p. 21; M H Kamali, Principles of Islamic Jurisprudence (1st ed., Cambridge: 2003) (hereafter Kamali), p. 2.
3 Liebesny, op. cit. n. 2, pp. 12–20; S Schacht, An Introduction to Islamic Law (1st ed., Oxford, 1964) (hereafter Schacht), p. 60.
4 Normative practices of the Prophet derived from ahadith (reports) of the Prophet Mohammed’s ( pbuh) actions, teachings and statements in respect of how laws should be applied; Liebesny, op. cit. n. 2, pp. 12–20.
5 Personal effort through all forms of methodical (analogical) reasoning in the widest sense through knowledge of the source materials to apply the laws, and by advancing the existing laws to arrive at a solution or theory: N J Coulson, A History of Islamic Law (1st ed., Edinburgh, 1964) (hereafter Coulson), p. 76; Kamali, op. cit. n. 2, p. 468; W B Hallaq, Islamic Legal Theories (1st ed., Cambridge, UK, 1997), p. 19.
The International Construction Law Review [2012
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