Wybrane problemy zgody inwestora na zawarcie umowy o podwykonawstwo (art. 647 (1) § 2 k.c.)

Abstract

SELECTED PROBLEMS OF EMPLOYER’S PERMISSION FOR SUBCONTRACTING IN A CONTRACT FOR CONSTRUCTION ART. 647 1 CIVIL CODE

Since the very effective date of Article 647 1 of the Polish Civil Code, there have been difficulties in its interpretation. In addition to the non-obvious reasoning behind the introduced solution, doubts have arisen about a number of specific issues that are important while exercising Art. 647 1 of the Civil Code in practice. This came as no surprise, since there was nothing that could justify the optimism of the authors of that unconventional legal institution, which was after all introduced ad hoc and thus formed in a way that violates the rules of proper legislation. Preparation of that extensive regulation including five sectioning levels has proven extremely careless, while at the same time resulting in numerous interpretation problems. Among the concerns arising out of the interpretation of Art. 647 1 of the Civil Code, particular attention was given to the issue of its structure, including the enforceability of investor’s consent to the conclusion of subcontracting agreement, i.e. construction works contract concluded by the contractor with the subcontractor. Furthermore, despite the initial indecision in literature as to the assessment of legal nature of the investor’s consent to the conclusion of subcontracting agreement, the eventual opinion was that such consent is not mentioned in Article 63 of the Polish Civil Code. What was analysed was whether the subject of the investor’s consent is to be the sole conclusion of the subcontracting agreement with a specific content, or a  declaration about the assumption of joint and several liability for the payment of remuneration to the subcontractor, as well as the question of whether it must be made in writing, ad solemnitatem. Reviewers also focused on the matter associated with the requirement of “providing” the investor with the agreement or its draft, together with that part of documentation that specifies the range of subcontracting agreement, whether it relates only to presumed or active consent. The study also signals a problem with the investor’s implied consent to a subcontracting agreement assumed based on the fact that the investor tolerates the progressing construction works carried out by the subcontractor. More specifically, what raises concerns is a situation in which the investor has not seen the subcontracting agreement or its draft, along with the specified part of documentation, and in addition, a situation in which the investor, in terms of the traditional division, has not submitted an express declaration of will in which they agree to the conclusion of construction works contract between the contractor and subcontractor. The conclusion included a view that Article 647 1 of the Polish Civil Code does not provide for such a possibility, and at the same time does not provide the basis to make adjustments in relation to the current rules on submitting declarations.