Understanding the responsibility of the subcontractor in France: a major challenge for your company

As an SME manager, you often use subcontracting to optimize your projects, especially in construction or industrial services. However, the subcontractor liability remains a minefield, governed by the Civil code and a wealth of case law. The main business remains responsible to the project owner the actions of its subcontractor, even in the absence of personal fault, as affirmed by the constant judgments of the Court of Cassation.

Imagine a renovation site where your subcontracted electrician improperly installs a painting: you are the one who answers for poor workmanship in front of the customer. This chain of responsibilities requires increased vigilance to protect your business.

Who is responsible for subcontractors? The key role of the main business

The main company, or client, carries the responsibility of the subcontractor to the project owner. According to article 1792-1 of the Civil Code, it guarantees the complete execution of works, including delegated ones.

Concrete example: A SME from Lyon entrusts the plumbing of a building to a subcontractor. Leaks appear after receipt: the contracting authority assigns the main SME, which must indemnify before turning against the subcontractor on a contractual basis.

The doctrine, relayed by specialized lawyers, insists on this solidarity: the main contractor cannot discharge himself without an express clause.

Main company and subcontractor: a united relationship

In private markets, the absence of fault on the part of the main company is not an excuse: it is responsible for both the subcontractor and the client. The Court of Cassation specifies that this responsibility does not extend to sub-subcontractors without stipulation to the contrary.

For SMEs, this means auditing your partners: check their insurance and references before signing.

What are the 3 types of subcontractor responsibilities?

La subcontractor liability is divided into three main components, inspired by academic and jurisprudential doctrine.

1. Contractual liability to the main business

The subcontractor is required to Obligation of result : deliver a compliant service, without defects. Article 1231-1 of the Civil Code allows the main company to incur liability for breach.

Example: A subcontractor delivers cracked walls. The main company, condemned to repair, obtains compensation via appeal, proving the fault by expertise.

Jurisprudence imposes a presumption of causality: disorder in the subcontracted mission engages the person responsible.

2. Tort liability towards the contracting authority

Without a direct contractual relationship, the subcontractor is liable on the basis of articles 1240 and 1241 of the Civil Code for damages unrelated to the work.

Case law: An electrical subcontractor is convicted of a crime for fire caused by faulty wiring, directly compensating the owner.

3. Responsibility towards third parties

For damage to neighbors or users, delictual liability applies in full. A Gruesman subcontractor causing an accident engages his RC pro.

Educational framework: The 3 types in a table

Subcontractor liability Civil code: the legal foundations

The Civil code strictly frames the subcontractor liability. Article 1240 sets out the general principle: any fact causing damage requires compensation. In construction, articles 1792 and following extend to structural defects.

Professors such as those cited in Village de la Justice emphasize the obligation of the competent subcontractor to advise, even towards the less expert main company.

Standard insurance clause in subcontracting contracts:
“The Subcontractor undertakes to take out and maintain in force professional liability insurance covering all risks related to the performance of the services, with a minimum ceiling of [amount] euros, and to provide a certificate annually.”

This clause, based on doctrinal models, protects SMEs.

Is a subcontractor responsible for the 10-year warranty?

No, not directly to the project owner. The ten-year guarantee (art. 1792 Civil Code) is the responsibility of the signatories of the main contract. The subcontractor escapes this legal obligation, but the main company is responsible because of its subcontractor.

However, in practice, take out a ten-year liability contract: project owners and insurers often require it. A Capeb 2021 judgment confirms: the main company indemnifies, then appeals.

Example: For a poorly installed roof, the main SME pays for the ten-year repairs, then turns against the subcontractor for proven fault.

Responsibility of the subcontractor towards third parties and the contracting authority

With respect to the project owner: Limited, but real in crime. The Court of Cassation allows direct action if damage is distinct from the work.

Damage caused by a subcontractor: If scaffolding falls on a third party vehicle, full delict liability.

For the project owner, the main contractor filters, but increased vigilance if irregular subcontracting.

Liability of the main contractor due to his subcontractor

Total solidarity: no need for personal fault.

What are the risks associated with subcontracting for SME managers?

Les subcontracting risks threaten your balance sheet: delays, defects, disputes, economic dependence.

• Financiers: Allowances, penalties for late payments (up to 3% per day).
• Reputational: Loss of customers after disorders.
• Penalties: Concealed work (3 years in prison, €45,000 fine).
• Insurance: High deductible if subcontractor is not insured.

Concrete example: A Parisian SME sees its subcontractor cascading out doing illegal work: solidarity sanctions, €70,000 in fines.

The doctrine alerts on cascading subcontracting: zero visibility on rank 2.

Subcontractor insurance obligation: essential protection

Compulsory professional liability, recommended decennial. Article L.243-1 Insurance Code imposes civil liability for construction works.

Require certification: avoid personal recourse. Orus.eu notes: without, the main company pays and then indemnifies.

Requirement model: “The Subcontractor proves insurance covering hidden defects and third party damages within 8 days, under penalty of €150/day.”

Subcontracting: is customer agreement mandatory?

Yes, in construction for private contracts > 800 m² or public contracts (MOP law art. 14-1). Without written approval, irregular subcontracting: contracting authority responsible for direct payment.

Example: Without agreement, subcontractor subpoenas the contracting authority for unpaid debt.

For SMEs excluding construction, a contractual clause is sufficient, but always inform.

Best practices for securing subcontracting in your SME

Select via tenders, clear clauses, site monitoring.

• Prior audit: Kbis, insurance, references.
• Detailed contract: Obligations, penalties, termination.
• Follow-up: Weekly meetings, PVP.
• Recourse: Arbitration clause.

Box: SME checklist

• Verify subcontractor suitability
• Requiring insurances
• Obtaining customer agreement if BTP
• Provide warranty claims

FAQ: Answers to key questions about subcontractor liability

Who is responsible for subcontractors?

The main contractor is against the project owner; recourse is possible against a subcontractor.

What are the 3 types of responsibilities?

Contractual (vs main), delictual (vs master/third party), indirect decade.

Is a subcontractor responsible for the 10-year warranty?

Not legally, but recommended and recourse possible.

What are the risks associated with subcontracting?

Financial, criminal, reputational; cascading vigilance.

Subcontractor liability Civil code?

Art. 1240-1241: compensation for any damage; obligation result.

Subcontractor liability towards third parties?

Full crime, via RC pro.

Main company and subcontractor?

Solidarity: the main answer is due to the subcontractor.

Responsibility of the subcontractor towards the project owner?

Tort if distinct damage.

Subcontractor insurance obligation?

RC pro yes; decennial recommended.

Responsibility of the main contractor because of his subcontractor?

Total, without any fault of its own.

Damage caused by a subcontractor?

Engage liability from the manager, chain appeal.

Subcontracting: customer agreement?

Mandatory in construction; otherwise irregular.

The material of subcontractor liability is highly regulated, evolving with case law and reforms. The personalized advice of a lawyer is essential to anticipate risks, draft adapted clauses and defend your interests in litigation.

Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris.

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