الجزاء المترتب على تأخر جهة الإدارة في صرف مستحقات المتعاقد : دراسة مقارنة بين النظامين المصري و السعودي

Abstract EN

In the administrative contract, the financial consideration may be a fee that is charged to the users of the public facility, and the financial consideration may take the form of the price, but this consideration inevitably goes to financial and in-kind subsidies, credit facilities, loan benefits and in advance payments, announced by the administrative authority at the time of the contract.

The method of payment of this consideration differs from one contract to another.

This consideration may be paid on an immediate basis or in instalments.

This consideration may be repaid in a phased manner, as in the public works and supply contracts, as the contractor obtains its receivables in the form of clearance of payments that are paid in a sequential and regular manner, commensurate with progress and proportion of work.

The disbursement of the financial consideration in the administrative contract is governed by a set of principles, which govern its disbursement, including the need to be fulfilled within the time agreed or prescribed by law.

The contractor is not authorized to refrain from executing the administrative contract if the administrative authority ceases or delays the payment of its dues, but must continue to execute, and go to court to seek compensation; in view of the subjective nature of the administrative contracts and the need for the general facility to perform the service assigned to it without interruption.

The financial consideration is considered to be one of the most important rights of the contractor at all, so the administrative body must fulfil it on time.

The administrative authority has no right to fail to fulfil it when the contractor breaches its contractual obligations.

Before the courts.

If it refrained or delayed, it would be a serious contract error that would entail the administration's responsibility to the judiciary.

There is a set of sanctions to be imposed by the administration when it delays the payment of the contractor's receivables, some of which are intended to compensate the contractor, such as the provision of a financial amount that would make up for the damage caused by the delay, exemption from demurrage and the costs of supervising the delay in the disbursement of the receivables, as well as the provision; apart from paying the fines of delay as the receivables were the result of a commercial debt.

Some of these sanctions also target the civil servant who has caused delays in the disbursement of receivables by charging him the amount of compensation awarded to the administration as well as by disciplinary magistrate; so that time may be spent on the timely disbursement of such receivables without inaction, negligence or intransigence; some of which are aimed at terminating the contract, as the delay in the disbursement of receivables was a serious contract error justifying the claim for avoidance of the contract.

There was no full agreement between the Egyptian and Saudi systems on the application of those sanctions, whether within the scope of the legislation or even the judicial position, but there were some differences that would be clarified in the lines of the research.