عربي
16 صفر 1441  ,  15 تشرين الأول 2019

Fatawaa


Fatwa Number : 3383

Subject : Ruling on Maintenance Service Contracts

Classified : Current Financial Issues

Fatwa Type : Search Fatawaa


Question :

Are maintenance service contracts which include providing spare parts considered a sort of gambling, and thus considered invalid?


The Answer :

All perfect praise be to Allah, The Lord of The Worlds, and may His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

Maintenance service contract is a contract whereby one party is committed, before the other, to checking the equipments and the machines, which are the subject matter of the contract, over specific alternating periods to keep them running, and fix malfunctioning parts or replace them with new ones paid for by the client(Owner of the establishment). In Sharia terms, this maintenance service contract is an Ijarah of labor(where the compensation is for the effort and skill of a laborer), because the laborer(Technician) is committed to delivering periodical maintenance and check up for the equipments and machines in return for an agreed upon wage.

As regards forbidden gambling, it is a win or lose situation. For more details, please refer to the book{Shareh Al-Mahalli Ala Al-Minhaj, 4/267}. In order to clarify the concept of gambling, it is imperative to remind ourselves of the concept of Gharrar(that is, uncertainty and speculation) and how it differs from gambling. The outcome of Gharrar is unknown, please refer to the book {Al-Mabsoot by As-Sarkhasi, 12/194}, such as selling a fetus in its mother`s womb. Gharrar could be excessive, such as selling a fetus in its mother`s womb, and it could be non-excessive and forgiven, such as selling a house without showing its foundations. This way, gambling is more specific than Gharrar since the former can never be other than an excessive Gharrar by which both parties intend to make profit at the expense of the other.

It is more accurate to assume that maintenance service contracts involve the confusedness of Gharrar, not gambling, since equipments and machines may and may not malfunction. However, this is considered non-excessive Gharrar that people usually forgive. This is because the maintenance service contract is mostly to the benefit of both parties. In modern times, it is customary to regard maintenance service contracts an integral part of services that participate in keeping the wheel of economy running since they are amongst the needs which people can`t do without. Therefore, Gharrar in these contracts is forgiven by Sharia in analogy to Ijara and Ju`ala contracts. Al-Imam An-Nawawi(May Allah have mercy on him) said, "In principle, Gharar sale is invalid…..what is intended here is the contracts in which there is excessive Gharrar that can`t be avoided……..As for Gharrar sale which is a necessity and can`t be avoided, such as the foundations of a house….It is valid by consensus of scholars(Ijmaa`)."{Al-Majmou`, 9/258}.

Resolution No.(103)(11/6) issued by the International Islamic Fiqh Assembly states:

"First, a maintenance service contract is a amongst the emerging contracts upon which the general rules of contracts apply. Its framing and ruling varies according to its form. In fact, it is a commutative contract whereby one party commits to checking and fixing a machine or an equipment, over alternating specific periods or in case of emergency, in return for a specific wage. The party in charge of maintenance, either delivers the maintenance service alone or the service and the spare parts.

Second, a maintenance service contract has many forms, and the ruling of Sharia on some is clear. They are:

1-An independent maintenance service contract in which the party delivering the maintenance delivers the needed service alone or the service and some insignificant materials which both parties don`t usually take into account.

In Sharia terms, this contract is framed as an Ijara contract. This contract is permissible under the condition that the service and the wage are specified.

2-An independent maintenance service contract in which one party commits to delivering the maintenance service and the client provides the materials.

In Sharia terms, this contract takes the same framing and ruling of the first one."And Allah knows best.




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