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 behavior 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 that 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.