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However, where a contract is entered into that is subject to UAE law, the UAE Civil Code
gives some limited comfort to the contractor. First of all, I should make it clear that, under the
UAE Civil Code, there is no express right for one party to suspend its obligation(s) towards
the other. However, having said that, Article 247 provides: In contracts binding upon both
parties, if the mutual obligations are due for performance each of the parties may refuse to
perform his obligation if the other contracting party does not perform that which he is obliged
to do.
Article 247
Put simply, where the employer has an obligation to pay the contractor - for example, in the
case where the engineer has certified a payment and the employer fails to make that
payment - then, subject to the provisions of the contract, or if there is no such provision in
the contract relating for suspension for non-payment, then the contractor has the right to
suspend his services.
Note, however, that Article 247 gives the contractor the right to refuse to perform his
obligation(s); it does not go further and allow the contractor to terminate the contract.
Termination under the UAE Civil Code is dealt with by Article 892: A contract for Muqawala
shall terminate upon the completion of the work agreed or upon the cancellation of the
contract by consent or by order of the court.
UAE Law
In a contract governed by UAE Law, if there is no provision that allows a contractor the right
to suspend for non-payment of services, suspending such services on the basis of the
provision of Article 247 will not necessarily prevent an employer from taking the view that the
contractor, by not performing his obligations - that is, by suspending his services - has
breached the terms of the contract, and therefore will allow the client or employer to seek to
terminate the contract for the contractors breach.
However, having said that, a court or arbitrator, in dealing with a contract subject to UAE law,
must take account of the provisions of Article 247 of the Civil Code, particularly if the contract
does not provide for suspension for non-payment or at all.
Where suspension is being considered in respect of a contract in circumstances where there
is an absence of a suspension provision, I would not recommend that the contractor simply
rely on Article 247, but seeks legal advice.
Construction week