Penalty clause and penalty for delay in an import contract

There is nothing wrong with taking an amount of money from
the supplier to guarantee delivery of the product at the specified time.
This comes under the heading of penalty clauses, which were permitted by the
scholars. 

But if the supplier does not fulfil what is expected of him,
and the amount (of the penalty) exceeds what is commonplace, then he may
refer it to the sharee’ah court, which will seek the help of people with
experience to calculate the harm that has befallen the purchaser or the
importer. 

Dr. Yoosuf al-Shubayli said concerning import contracts: The
penalties for delay that the purchaser imposes on the supplier in the event
of delay, if it is in the form of a discount on the value mentioned in the
contract, then it is permissible, because it is not like something extra in
a loan owed by somebody, rather it is a discount or deduction, and it
is a kind of penalty clause. The Council of Senior Scholars in Saudi Arabia
has issued a fatwa stating that it is permissible, and that the penalty
clause that is stipulated in the contract is a valid and sound clause which
must be adhered to, unless there is a legitimate reason not to meet the
commitments which dictates the penalty which is regarded as valid in
sharee’ah. In that case, the reason makes the clause null and void
until the reason or excuse is gone. 

If the penalty clause is too much according to custom, so
that it was meant as a financial threat and went far beyond the guidelines
of sharee’ah, then we should go back to justice and fairness on the basis of
the benefit that was missed or the harm that was caused, and in the event of
a dispute, that should be referred to the sharee’ah judge, who will base his
judgement on the advice of people of experience. Abhaath Hay’at Kibaar
al-‘Ulama’, 1/214 

End quote from the Shaykh’s website. 

And Allaah knows best.