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Author: “Mohammad Mufid” Ratib Qurashi
Introduction:
After our first article discussing the definition of a contracting agreement and the contractor’s obligations in general, we continue discussing important matters regarding contracting Aagreements; the provisions of handing over the subject of the agreement and penalties that result upon violating handing over provisions.
This article will be delivered on a question-answer basis to make it easier for the reader to understand the rigid legal principals and to assist them in what they might encounter in their day-to-day practice.
Is the contractor obliged to hand over the subject of the agreement? And how?
The short direct answer is yes, the contractor is obliged to hand-over the works after completion. However, practical cases are not this simple. We need to highlight that what must be handed over is the results of the work agreed upon. For example, if the owner provided the materials, then what must be handed-over by the contractor is the processed material according to the agreement. Returning the material as it was cannot be considered as a proper contracting agreement hand-over. Nevertheless, not only the materials used in the direct manufacturing of the agreement subject shall be returned, but also any supporting material or document given to the contractor in order to complete his work. To address the answer of the question properly, we need to identify the method of the handing-over process. The general rule states that enabling the owner to possess the product of the agreement and to use it without any impediment or obstacles, shall be considered sufficient, even if faced by the owner’s rejection.
Is it possible for the contractor to refuse to handing-over?
Generally, the contractor must hand-over the works on the pre-approved date agreed upon between the parties. However, if there was no such agreement, the contractor is obliged to hand-over the work by a reasonable time according to the nature of the works, the practices, and the custom of the field of works done. Nonetheless, if the owner did not fulfil his obligations towards the contractor, the contractor’s refusal of handing over shall be considered legitimate. Moreover, article (280/2) of the Qatari Civil Law speaking on the right of retention states that “However, a holder or acquirer of a thing may refuse to return it until all amounts owing thereon have been paid, including such appropriate or necessary expenses incurred by such person in connection with such thing, unless the obligation to return such thing arises from any unlawful act.” This Article doesn’t only legitimize the act of refusing to hand-over, but rather forces the owner to incur any costs related to the delay of the hand-over process.
Where to hand-over the work?
If the works agreed on in the contracting agreement were related to real estate, then the location of handing-over is the location of the real estate. However, in the case of movable materials or products, the location of the handing-over can be agreed on in the agreement. If there was no such agreement, the location is determined according to the practices and the custom of the field of works. Nevertheless, article (441) states that “Where the place for delivery is not specified, the goods shall be delivered at the seller’s place of residence.” Referring to this article is considered the last resort and is only appropriate when there is no agreement nor custom that could solve the hand-over location issue.
We will continue discussing the provisions of contracting agreements in our upcoming articles. Until then, don’t hesitate to contact any of our professionals at Alhababi Law Firm for further information in regards with contracting agreements.