Recently, the Supreme Court issued an important
ruling addressing the discrepancies that had
appeared in court decisions regarding the
conditions of investors’ joint and several liability
for the payment of fees owed to subcontractors
from contractors for completed works. In its
resolution dated 17 February 2016, case no. III CZP
108/15, the Supreme Court found that for the
investor’s consent given implicitly (Art. 60 of the
Civil Code) to the execution of a construction works
contract with a subcontractor to be effective, the
investor must be afforded an opportunity to
familiarize themselves with the contract’s
provisions that define the scope of the investor’s
liability as contemplated in Article 6471 § 5 of the
Civil Code.
In the case addressed in the cited resolution, the
subcontractor sought payment by the investor of
the fee due for completed construction works,
which the contractor had failed to pay. In the case
in question the contractor had actually failed to
inform the investor that some construction works
were to be carried out by the claimant, nor did the
contractor provide the former with the final
subcontract or its draft. In addition to this, during
the court proceedings it was demonstrated that the
subcontractor claiming payment of the fee took
part, along with the investor’s representatives, in
working meetings dealing with the progress of
works, while employees of the subcontractor were
present at the construction site wearing work
clothes with the company’s logo on their back. The
fact that construction works had been carried out
and accepted by the investor was not disputed
between the parties in that case.
It is apparent from the case-law to date that the
investor’s consent to the conclusion of a contract
between the contractor and a subcontractor may be
expressed in various ways, and in particular by the
investor’s passive consent (no objections are raised
with regard to the received notification of the
conclusion of a subcontract), by active consent
expressed directly (direct acceptance of the
conclusion of a subcontract) and by active implicit
consent (any behaviour expressing intent in a
sufficiently clear manner, such as tolerating the
performance of construction works by a
subcontractor). Depending on the specific form in
which the investor has granted their consent to the execution of the subcontracting agreement,
different criteria had been formulated that must be
met in order for the investor’s joint and several
liability for the payment of the subcontractor’s fee
to arise. The more liberal criteria originally applied
in court practice to the active consent given
directly (i.e. knowledge of the relevant provisions
of the agreement concluded with the subcontractor
is not required) came to be accepted also in
relation to implicit consents. This practice was
considered questionable by the court that framed
the question of law in the said matter. The
Supreme Court found conclusively that in the case
of a consent expressed implicitly, for the investor
to be held jointly and severally liable for the
payment of the subcontractor’s fee, the former
must have been given an opportunity to familiarize
themselves with the relevant provisions of the
concluded agreement. The relevant provisions of
such agreements include, in particular, the clauses
determining the amount of fee payable to the
subcontractor.
The cited resolution may be of considerable
importance to court practice. However, it does not
remove all potential hazards faced by the investor
in connection with the performance of construction
works by subcontractors. It should be kept in mind
for the existence of an implicit consent on the part
of the investor to be accepted, it is sufficient to
demonstrate that the investor was aware of the
relevant provisions of the concluded agreement and
such knowledge can come from any source and be
obtained either before or after the execution of the
agreement in question.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
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00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
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certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of
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legal development to the particular facts can be verified.