The article discusses the issue of subcontracting in service contracts, with particular emphasis on the possibility of direct redress by creditors against subcontractors. Polish civil law stipulates a rule according to which the creditor may seek redress only from the debtor but not from subcontractors. Exceptions to this rule are provided for in few provisions (Article 738(2) or Article 840 CC) that introduce joint and several liability of the debtor and the subcontractor. In practise, this means that the creditor may directly pursue claims also from the subcontractor. International transport law has also adopted a measure of joint and several liability of the debtor (contracting carrier) and its subcontractor (operating carrier) for damage caused by the latter, allowing creditors to pursue claims directly from subcontractors. Such a measure shortens the settlement process, increases the efficiency of pursuing claims and introduces clarity in the debtor-subcontractor relationship. It reduces the risk of insolvency of the debtor, and in many cases allows him to avoid involvement in the dispute. At the same time, the author emphasises that the joint and several liability of the debtor and the subcontractor does not compromise the situation of the subcontractor. In the event that the debtor and the subcontractor are jointly and severally liable, the debtor’s claim is regressive, it arises only after payment of compensation to the creditor, which prevents the debtor’s enrichment at the expense of the subcontractor. In addition, this proposal reduces the number of lawsuits, thus cutting the time and costs associated with pursuing claims. In conclusion, the author proposes that similar measures be introduced to Polish civil law in a broader scope for certain service contracts. He sets out conditions for the joint and several liability of the debtor and his subcontractor, indicating the need to strike a balance between the interests of the creditor, the debtor and the subcontractor.
Krzysztof Wesołowski (Thu,) studied this question.