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Subcontracting

09/06/2015

Subcontracting and tâcheronnage
Cass. 3rd Civ., 20 jJanuary 2015, No.13-24.283

Following the breakage of certain parts of glass roofs, a contractor had been entrusted with the replacement of the glazing. The said contractor hired an independent craftsman solely for laying the relevant glazing. As water seepage appeared, the project owner brought proceedings against the contractor and its insurer, which filed a third-party claim against the craftsman who installed the glazing.

The Aix-en-Provence Court of Appeals ordered the craftsman to hold the contractor free and harmless on grounds that the subcontractor was obliged to complete works free from any defect, and he was, in case of breach, liable in contract to the main contractor.

After reviewing an appeal lodged by the craftsman, the Cour de Cassation quashed the above decision by noting that the craftsman could not be characterised as a subcontractor, as he was only responsible for installing the glazing that had been supplied to him and was not in charge of the project’s independent management.

In the said decision, the Cour de Cassation distinguished between subcontracting and tâcheronnage. While the concept of tâcheronnage (hiring of labour or contract for services) provided for in Article 1787 of the French Civil Code corresponds to a service agreement under which a person is entrusted with laying or installation works, without supply of materials, such an arrangement does not constitute a subcontracting agreement. Unlike a subcontractor, a hired labourer works fully under the responsibility of the person employing him.

Chain subcontracting – Procedure for the presentation of a second-tier subcontractor
Cass. 3rd Civ., 21 January 2015, No.13-18.316

A contractor, responsible for the demolition and shell works, had subcontracted part of the works to a second contractor, which itself had subcontracted part of its duties to a third-party contractor. The first-tier subcontractor had been involved in a court-ordered liquidation procedure and had failed to pay the second-tier subcontractor, which then sued the contractor responsible for the demolition and shell work in order to obtain the payment of the amounts remaining due plus damages. The Rouen Court of Appeals found for the tier-two subcontractor on grounds that the contractor responsible for the demolition and shell works had acted tortiously by accepting the tier-two subcontractor without however having it approved by the project owner.

The Cour de Cassation quashed this appellate decision on the basis of Article 2 of the Act of 31 December 1975, on grounds that only the tier-one subcontractor (deemed the main contractor vis-à-vis its own subcontractor) is responsible for presenting the tier-two subcontractor for approval by the project owner.

In the said decision, the Cour de Cassation reaffirmed its strict interpretation of Article 2 of the aforementioned Act under which “the subcontractor is deemed the main contractor vis-à-vis its own subcontractors1. No provision of the Act of 31 December 1975 obliges the main contractor to report to the project owner the existence of tier-two subcontractors. The obligation to procure the acceptance and approval of such tier-two subcontractors is incumbent only on the tier-one subcontractor which is obviously better placed to know about their existence. However, such provisions do not at all entail that the main contractor becomes the project owner vis-à-vis the tier-two subcontractor2. There may therefore not be any chain of direct actions in this area3.

1Cass. 3rd Civ., 21 January 2004, No.02-12.342 and Cass. 3rd Civ., 27 September 2005, No.04-16.371
2 See also our comments on chain subcontracting in the Construction Letter, January 2014.
3 Cass. 3rd Civ., 17 July 1987, No.86-12.789 - Cass. 3rd Civ., 12 July 1989, no.88-11.289 - Cass. 3rd Civ., 14 June 2000, No.98-15.436Cass. 3rd Civ., 15 January 2003, no.01-02.967

Chain subcontracting – Procedure for the presentation of a second-tier subcontractor
Cass. 3rd Civ., 18 February 2015, nos 14-10.604 et 14-10.632

In order to convert former clinics into apartments and commercial premises, buyers of plots had created an association foncière urbaine libre (AFUL – Free Urban Landed Property Association). The AFUL had entrusted the rehabilitation works to a company that subcontracted all of the said works to another contractor.
The subcontractor sued the main contractor and sought the cancellation of its subcontracting agreement on grounds of the violation of Article 14 of the Act of 31 December 1975 and served on the project owner a writ of summons seeking the payment of various amounts.

The Montpellier Court of Appeals granted the subcontractor’s claim and ordered the main contractor and the project owner to pay jointly and severally damages corresponding to the fair cost of the works that had been carried out.

The Cour de Cassation upheld this appellate decision on grounds that the project owner had been negligent and was to be held liable in tort, as he had failed to ask the main contractor to prove that it had delivered to the authorised and approved subcontractor a bond guaranteeing the payment of all amounts due under the contract.

Authors

Picture of Aline Divo
Aline Divo
Partner
Paris
Charlotte Félizot