Decision Lacking Legal Basis

Application pratique:

Under the 1996 Court of Cassation ruling, a project owner cannot set off unliquidated or uncertain claims against a subcontractor's direct payment demand. Here, the landlord's liquidated damages and defect retention were neither assessed nor certain when the formal notice was received. The landlord must now pay the subcontractor the full €18,000, then separately pursue the main contractor for the delays and defects through legal channels or expert determination.

Application pratique:

The case law confirms that a project owner’s right to set-off requires the debt to be certain and due at the date the formal notice is received. Since the buyer’s repair estimate was provisional and unadjudicated, the court would order full payment to the subcontractor. The buyer should pay the €35,000 immediately, then obtain a formal expert assessment of the leaks and claim damages from the main contractor under their contract.

Application pratique:

The ruling stresses that only debts certain in existence and amount can be set off against a subcontractor’s direct claim. The co-owner’s rectification cost was an estimate, not a fixed debt, at the critical date. The co-owner must pay the subcontractor €9,000; recovery for the defective work should then be sought from the main contractor, ideally after a court-appointed expert determines the exact loss.