本文作者:贾怀远
在国际工程领域,承包商面临的困境之一是项目竣工后,业主以各种理由拒绝验收,致使承包商不得不继续承担工程竣工后的一切风险。业主实际上已接管该工程项目,甚至已进行商业运营,但拒绝签发接管证明[1]。但承包商必须继续承担该工程项目的养护和维护工作,甚至在业主正常经营中承担质量保证风险。
“Muqawala Contract”是一种流行在中东工程建设领域的典型合同,特别是在阿联酋、巴林和阿曼。根据阿联酋《民法典》,其定义为:Muqawala是一种合同,其中一方承诺为另一方制作一件东西或执行一项工作,而另一方则承诺提供相应的报酬。阿联酋的《民法典》的Muqawala Contract章节详细规定了工程建设合同的原则以及业主、承包商的权利义务等。针对业主在工程完工后是否接收完工工程项目,阿联酋《民法典》第884条进行规定:
Article 884
The employer shall be bound to take delivery of the work done when the contractor has completed it and placed it at his disposal, and if, without lawful reason, he refuses, despite being given official notice, to take delivery, and the property is destroyed or damaged in the hands of the contractor without any wrongful act or default on his part, the contractor shall not be liable.
业主应在承包商完成工作并将其交付并置于业主处时,接受工作交付。如果业主在正式通知后,没有合法原因,拒绝接受交付,并且工作在承包商手中被毁坏或损坏,而承包商并没有任何不当行为或过失,那么承包商将不承担责任。
关于工程领域的法律规定及其英文翻译看,目前阿联酋《民法典》的英文版翻译显示,与沙特新的《民事交易法》有稍微的不同。阿联酋的《民法典》将业主拒绝接收工程项目的理由翻译成“without lawful reason[2]”,而沙特新的《民事交易法》将业主拒绝接收工程项目的理由翻译成“without a legitimate reason[3]”。由于阿联酋[4]和沙特不提供官方的英文翻译文本,更没有汉语的法律文本,所以,英语、汉语翻译的一字之差,可能导致业主是否有更多的“正当理由”可以拒绝接收工程项目。在实践中,业主多一个“正当理由”,承包商就不得不面临更大的风险和潜在损失。
声明
本文只是对阿联酋《民法典》英文文本的字面理解。英文文本的内容可能与阿拉伯文原文有所不同,并不构成任何法律意见或建议,也不承担因引用本文而产生的任何后果。
In the field of international engineering, one of the difficulties of the contractor is that after the completion of the project, the owner refuses to accept it for various reasons, so that the contractor has to continue to bear all the risks after the completion of the project. The owner has actually taken over the engineering project, and has even operated it commercially, but refuses to issue a taking-over certificate[5]. However, the contractor has to continue to undertake the care and maintenance of the engineering project, and even bear the quality assurance risk in the normal operation of the owner.
The "Muqawala Contract" is a typical contract popular in the field of engineering construction in the Middle East region, especially particular in the United Arab Emirates, Bahrain, and Oman. According to the UAE "Civil Code", it is defined as: A Muqawala is A muqawala is a contract whereby one of the parties thereto undertakes to make a thing or to perform work in consideration which the other party undertakes to provide. The Muqawala Contract section of the UAE's "Civil Code" details the principles of construction contracts as well as the rights and obligations of owners and contractors. Regarding whether the owner accepts the completed project after its completion, this is regulated in Article 884 of the UAE's "Civil Code", which states:
Article 884
The employer shall be bound to take delivery of the work done when the contractor has completed it and placed it at his disposal, and if, without lawful reason, he refuses, despite being given official notice, to take delivery, and the property is destroyed or damaged in the hands of the contractor without any wrongful act or default on his part, the contractor shall not be liable.
In terms of legal provisions and English text in the engineering field, there are slight differences between the current English translation of the United Arab Emirates' "Civil Code" and Saudi Arabia's new "Civil Transaction Law". The UAE's "Civil Code" translates the reason for the owner's refusal to accept the engineering project as "without lawful reason", while the new Saudi "Civil Transaction Law" translates it as "without a legitimate reason". Since neither the UAE nor Saudi Arabia provides official English translation texts or any Chinese translation texts, a slight difference in translation into English or Chinese can potentially impact whether the owner has more "justifiable reasons" to refuse to accept the engineering project. In practice, the more "justifiable reasons" the owner has, the greater the risk and potential loss the contractor has to face.
Disclaimers
This article is only a literal understanding of the English version of the UAE Civil Code. The content of the English text and Chinese interpretation may be different from the original Arabic text, and it does not constitute any legal advice or suggestion, nor does it bear any consequences arising from the reference to this article.
[1] 竣工证书在不同合同中的描述不同,有的称为接管证书(TOC)或临时验收证书(PAC),具体名称根据合同定义判断。
[2] the Cambridge Dictionary: “without lawful reasons” typically implies an action or decision that has been taken without a legal or valid justification. If the phrase is used in a particular legal or professional context, its interpretation might vary, and it would be best to consult with a legal or relevant professional.
[3] the Cambridge Dictionary: "without legitimate reasons" generally implies that an action or decision was taken without justifiable, lawful, or rightful reasons. The interpretation can vary based on the context in which it's used.
[4] 阿联酋过去提供官方英文版的法律文本,近年已经不再提供,所有法律的英文版本仅供参考。
[5] The description of the certificate of completion is different in each contract, and some are called Take over certificate (TOC ) or Provisional acceptance certificate ( PAC ), the specific name shall be judged according to the contract definition.