Few areas of construction law have generated more controversy in jurisprudence and
court practice in Poland than the nature of the performance that the construction
works contract imposes on the contractor. The debate comes down to the following
point: is the obligation – which according to Article 647 of the Civil Code1, consists
in the delivery to the investor of the structure envisaged by the contract, built in
accordance with the design and with technical standards – a divisible obligation? In
other words, is it a type of obligation that can be render a performance in parts without
this fundamentally altering its object or value (Article 379 § 2 of the Civil Code)?
Despite more than 20 years of judicial interpretation, this issue has yet to be
unequivocally resolved. There are as many rulings that support the divisibility thesis as
there are ones that reject it2. Given the crucial role of the construction works contract,
this state of affairs is a most unfortunate one, and merits an in-depth analysis.
Consequences of the contractor’s obligation being classed as divisible
Whether the obligation that the construction works contract imposes on the
contractor is classed as divisible or not has fundamental implications for the legal
situation of the parties. That is because, under Article 491 § 2 of the Civil Code, if a
party is in delay with the performance of a contract where the obligation is a divisible
one, the counterparty is entitled to terminate the contract ex nunc, i.e. from now on.
In our context, this means that the investor can pay the contractor for the part of the
work that has been completed, and appoint a new contractor.
But if the obligation is an indivisible one, the counterparty is entitled to terminate
based on Article 491 § 1 of the Civil Code. And it follows from Article 494 that such
a termination applies ex tunc, i.e. from the outset3. In other words, the contract is
voided as if it had never been entered into. The parties have to return everything
they received under the contract. In the construction context, the consequences are
really severe: the contractor effectively has to demolish the unfinished structure at
their own cost, no matter what the stage of the building process. From the investor’s
perspective, this is often economically totally unreasonable.
On the other hand, divisibility has negative consequences where there are multiple
persons forming one side of the construction works contract, because both the
amount owed and receivable are divided into as many independent parts as there
are debtors or creditors (Article 379 § 1 of the Civil Code). Thus if the construction
works contract is between, say, a contractor and four investors, and there is no
solidarity clause, then the contractor has to seek payment separately from each of
the four investors. This does not sit well with the principle of equal protection of the
rights of all sides to a contract.
Definition of a divisible obligation
Pursuant to Article 379 § 2 of the Civil Code, a divisible obligation is one that can be
fulfilled in parts without this fundamentally altering its object or value. How should
we understand this? Can this be said of the obligation that the construction works
contract imposes on the contractor?
The judges and legal scholars who claim that it can commonly use the following
argument: the nature of this obligation is such that it can be performed in separate
parts at different points in time, and by different contractors – it often happens that
one company erects the frame, another installs the electrical system, etc. – hence it
is divisible. So a distinction is made here between the object of the obligation, i.e.
the structure, which indivisible, and its performance, which is, because it consists
of a sequence of separate activities4. This reasoning is further supported by citing
Article 654 of the Civil Code, which expressly establishes an exception to the rule of
simultaneous performance of mutual obligations (Article 488 § 1 of the Civil Code).5.
This reasoning is flawed, however. It confuses a divisible obligation with another
category recognised in contract law, namely that of a portion obligation6. The latter
refers to obligations that, by their very nature, can be performed in portions, understood
as stages or periods, regardless of whether they concern the delivery of a generic or
determinate thing (e.g. the payment of a price in several instalments, or the writing of
a book). But this does not prove divisibility. Divisibility plays a totally different role in
contract law.
Divisibility refers, not to the way an obligation is performed, but mainly to situations
where there are multiple debtors or creditors among whom the obligation is divided.
Its definition in Article 379 § 2 should be interpreted as follows: a divisible obligation
is an obligation that can be divided into parts that are independent obligations of the
same kind. Only in such cases is it possible to divide the obligation into equal parts that
accrue to individual creditors (Article 379 § 1)7. An obligation that involves an action
(facere) is divisible only if the action is a homogenous one (and if it happens over a
period of time or is repeated, e.g. the weekly cleaning of a staircase).
But the obligation that the construction works contract imposes on the contractor, while
performed over a period of time, is not a homogenous action: it consists of a complex set of
activities that are very different from each other. An attempt to divide it among creditors on
this basis would create a totally unnatural situation. The contractor would owe a different
kind of obligation to each creditor: one would be entitled to demand the erection of the
frame, another the staircase, yet another the installation of the lighting fixtures, etc. This
would be, not only impractical but also totally at odds with the very idea of divisibility, in
which all persons forming one side of a contract are entirely independent creditors.
Possibility to withdraw from part of a construction works contract under
Article 491 § 2 of the Civil Code: conclusion
Given all of the above, only one conclusion can be drawn: the obligation that the
construction works contract imposes on the contractor is not a divisible one. It follows
that the contract can only be terminated ex tunc, and not ex nunc – obviously a very
unwelcome situation from the point of view of construction projects. How can this
problem be solved?
It appears that the best solution is the one that M. Lemkowski suggested in a commentary
to a 2004 ruling of the Supreme Court8. Applying a functional and systemic interpretation,
he pointed out, correctly, that the text of Article 491 § 2, under which only contracts
where the obligation is a divisible one can be terminated ex nunc, allows a broader
reading that would cover contracts involving portion obligations, too. Construing it this
way would represent an effective compromise between economic pragmatism and the
science of law.
To conclude on an optimistic note: there has been a noticeable tendency on the part of the
courts of late to issue rulings that are in line with what this article has been arguing. As the
Appeals Court in Krakow said in a recent ruling: “the obligation in the construction works
contract is, in principle, indivisible – in the sense that its object, the structure to be built, is
indivisible. However it can be divided in the sense that it can be executed, and the costs
incurred in its execution can be settled, in parts which means that the investor can keep
the portion of the structure that has been completed as long as the contractor receives the
corresponding portion of the compensation.” 9.
1. Act of 23 April 1964 – Civil Code (Journal of Laws 2020 item 1740);
2. Cf. two recent contradictory rulings: the decision of the Appeals Court in Krakow of 12 February 2015,
I ACa 1628/14, LEX no 1679931, and the decision of the Appeals Court in Poznan of 12 July 2018, I
AGa 118/18, LEX no. 2582659. The controversy is best illustrated by two rulings of the Supreme Court,
issued in the same case but which are mutually exclusive: the decision of 14 March 2002, IV CKN
821/00, LEX no. 54375, and the decision of 19 March 2004, IV CK 172/03, LEX no. 112927.
3. The scope of this article does not permit a discussion of withdrawal from a construction works contract
on the basis of Article 635 of the Civil Code. The reader is kindly referred to the following publication:
A. Więcek, Odstąpienie od umowy o dzieło na podstawie art. 631, 635 i 644 kodeksu cywilnego na tle
ogólnych przepisów o zobowiązaniach umownych, IPP UJ, 2016, no 6.
4. Cf. the decision of the Appeals Court in Katowice of 14 March 2014, V ACa 791/13, LEX no. 1448540;
and the decision of the Supreme Court of 9 July 2009, III CSK 341/08, LEX no. 584753.
5. P. Jochemczyk, Podzielność świadczenia wykonawcy z umowy o roboty budowlane, MOP, 2020, no.
16, p. 875
6. Por. art. 450, 456, 465 § 1 zd. drugie, 484 § 2, 493 § 2 k.c.
7. The decision of the Supreme Court of 14 March 2002, IV CKN 821/00, OSG 2004, no. 8, item 103.
8. M. Lemkowski, Glosa do wyroku SN – Izba Cywilna z dnia 19 III 2004 r. IV CK 172/03, Rejent, 2016, no. 1
9. The decision of the Appeals Court in Krakow of 9 January 2019, I ACa 320/18, LEX no. 2740704. Cf. also
the decision of the Supreme Court of 26 June 2015 r., V CSK 705/14, LEX no. 1797078.
Jakub Jasiński
Miller, Canfield, W. Babicki, A. Chełchowski i Wspólnicy Sp.k.