Subcontracting Contract Law: Liability and Direct Action

Extract

[...] In conclusion, its liability is engaged and also towards its insurer. The subcontractor as well as the supplier may also see their tort liability engaged. The manufacturer engages its contractual liability in the translative chain. The contractor may request the full repair of the damage suffered, which corresponds to ?36,730 for the replacement of the plates, ?4,580 for the restoration of the building. In conclusion, the contractor has no obligation to pay the subcontractor and the latter has a set of remedies allowing him to obtain a repair of the disorder. [...]

[...] His report (May 18, 2024) concludes that the building is unfit for its purpose due to disorder. At the same time, the company GHI, unpaid by the company DEF, now claims 14,864 ? directly from the company ABC. Several problems therefore arise : - Is the main contractor contractually linked to the company GHI, subcontractor of the company DEF which contracted with the main contractor, owing to the non-payment of the company DEF ? - Who is responsible for the leaks on the construction site? Against whom must the main contractor turn? [...]

[...] In fact, the direct action is only open if the subcontractor has been accepted by the main contractor and their payment conditions approved. The jurisprudence has a fairly strict conception, the Court of Cassation has ruled on July and September that the mere recognition of the subcontractor or his presence on the site is not equivalent to acceptance. The acceptance must result from a clear and express act of the main contractor as well as the approval of the payment conditions, which is an autonomous act to be separated from the acceptance. [...]

[...] The legal qualification of the GHI company Article 1he of the 1975 law defines subcontracting, it is the operation by which an entrepreneur entrusts, under his responsibility, to another person called subcontractor, the execution of all or part of the contract for works. In this case, DEF is indeed the main contractor, GHI executes part of its works, DEF remains responsible towards ABC. The company GHI is indeed a subcontractor who triggers the 1975 law with direct action. Can company GHI exercise direct action to obtain payment of ?14,864? [...]

[...] In this case, nothing is established, no information on a registered letter, a formal summons or proof of a one-month delay by the subcontracting company. According to the jurisprudence, the absence of a summons deprives the subcontractor of direct action. The burden of proof lies with the subcontractor. In conclusion, the two cumulative conditions are not found. The company GHI does not meet any of the conditions of Article 12 of the Law of December The direct action exercised against the contractor is therefore inadmissible. The contractor has no obligation to pay the 14,864 ? claimed by the subcontractor through the legal direct action. [...]