This article examines how gharar can infect a construction contract and if and how the extension of time and additional payment clauses can operate to negate the effect of gharar, and whether such provisions are compliant with the relevant articles of Law No. 1, 1987. This is done by identifying how gharar can infect a construction contract, reviewing the applicable laws that apply with respect to a construction contract and then the relevant provisions of FIDIC, Employer’s design forms of Contract.
Ibn TaymiyyahAl-Qiyās fī ash-Sharʿ al-Islāmī pp. 26-27; Translation from Mahdi Zahraa and S.M. Mahmor (eds.) “Validity of contracts when the goods are not yet in existence in the Islamic Law of sale of goods” 17 ALQ (2002) 388.
M.H. KamaliPrinciples of Islamic Jurisprudence (Cambridge: The Islamic Text Society2003) Chs. 4 and 5; Interpretation of textual meanings which in order of priority are immediate/implicit (ʿibārat al-naṣṣ) concomitant/alluded (ishārah al-naṣṣ) inferred (dalālah al-naṣṣ) required (iqtidā al-naṣṣ) and divergent (mafhūm al-mukhālafah) derived from words used in the text of the source materials/Articles of the law with further application through analogical reasoning (qiyās) consensus of opinion (ijmaʿ) influences of current practice and customs applicable to the industry as a whole or sections of the industry (ʿurf) juristic preference/equity (istiḥsān) considerations of public interest (mașlahah mursalah) presumption of continuity (istiṣhāb) and personal reasoning (ijtihād).