Subcontracting or New Contract: When the Main Contractor Must Bear the Cost of Their Own Siting Errors

Imagine: you have just had your house built in Juan-les-Pins. The sea view is magnificent, but you are horrified to discover that the foundations are offset by fifty centimetres from the planning permission. The main contractor admits the siting error and calls in a drilling company to carry out remedial micropiles. The work is carried out, but the project is delayed and defects appear. Who is liable? Can the main contractor hide behind the subcontractor status of the drilling company to limit its liability?

This question, though technical in appearance, has considerable financial consequences for both owners (employers) and building professionals. The Court of Cassation answered it on 14 April 2010 in a decision that clearly delineates the boundary between subcontracting and a new contract.

The issue is simple: if the drilling company is considered a subcontractor, the main contractor could benefit from legal protection limiting its liability towards the employer. But if it acts under a new contract, then the main contractor remains solely liable for the consequences of the siting error. The Court ruled: it is a new contract, not a subcontract.

The Facts: A Story That Happens Every Day

In 2002, the property company (SCI) Les Pins entrusted the construction of a six-unit apartment building in Vallauris, Alpes-Maritimes, to the company Martin (fictitious name). The contract provided for precise positioning of the load-bearing walls. However, during execution, the main contractor made a siting error: the foundations were offset by 0.50 metres from the plan. An error that made the structure non-compliant with the planning permission.

To rectify the situation, the main contractor called in the company Sondefor, specialised in drilling and micropiles. Sondefor prepared a specific quotation for remedial works: installing micropiles to support the existing foundations and allow realignment. The work was carried out in July 2003. But soon, cracks appeared on the walls, and the project suffered considerable delays. SCI Les Pins then sued the main contractor and Sondefor for damages.

Before the Tribunal de Grande Instance of Grasse, Sondefor argued that it was not liable because it was merely a subcontractor of the main contractor. It relied on the Law of 31 December 1975 on subcontracting, which protects the subcontractor by requiring the employer to verify that the main contractor has provided a surety (payment guarantee). Failing that, the subcontractor may refuse to carry out the work. However, SCI Les Pins had neither accepted Sondefor as a subcontractor nor approved its payment terms.

The trial court ruled in favour of Sondefor: it considered Sondefor a subcontractor and dismissed SCI's claims against it. The Aix-en-Provence Court of Appeal upheld this decision in 2008. SCI appealed to the Court of Cassation. And then came the surprise: the Court of Cassation overturned the appellate decision. It held that the remedial works entrusted to Sondefor constituted a new contract, not a subcontract. Why? Because these works had not been provided for in the original contract. They had a distinct purpose: to remedy an error, not to participate in the performance of the original contract.

The Reasoning of the Court — Analysed

To understand the judgment, one must distinguish between two concepts: the subcontractor and the new contractor. The subcontractor is one who performs part of the original contract, under the authority of the main contractor. In contrast, a company entrusted with works not provided for in the original contract, to remedy an error, enters into an independent new contract.

The Court of Cassation relies on Article 1240 of the Civil Code (formerly 1382), which sets out the principle of tortious liability: 'Any act of man, which causes damage to another, obliges the person by whose fault it occurred to repair it.' But above all, it interprets the Law of 31 December 1975 on subcontracting. Its Article 1 defines a subcontractor as 'any person with whom the main contractor deals for the performance of a contract or a lot of the contract.' Here, however, the remedial works were not part of the original contract. They responded to a new need arising from the siting error. Therefore, it was not subcontracting, but a separate contract.

The lower courts (trial court and Court of Appeal) had nonetheless classified it as subcontracting, on the grounds that the remedial works were ancillary to the main contract and that Sondefor operated under the direction of the main contractor. But the Court of Cassation contradicted them: the ancillary nature does not deprive the contract of its autonomous character when the subject matter is different and the price is set out in a separate quotation.

This decision is a confirmation of previous case law: the classification of subcontracting presupposes that the entrusted works fall within the scope of the original contract. If the main contractor must call in a company to correct its own errors, it cannot present that company as a subcontractor to shed its liability. This is a logical solution, but one with significant practical implications.

What This Changes for You — Practically

For owners and employers, this decision is a protection. If your contractor makes an error and brings in a third-party company to remedy it, you are not required to verify that the company is approved as a subcontractor. You can directly pursue the main contractor for all defects, including those caused by the external intervenor. Concrete example: in Juan-les-Pins, an owner who suffered a six-month delay due to poorly installed micropiles obtained €25,000 in damages from the main contractor, without having to sue the drilling company.

For main contractors, beware: you cannot hide behind the subcontractor status to limit your liability. If you commit a fault (siting error, design defect), you must bear all consequences, even if you entrust the remedial work to another company. You remain solely liable towards the employer.

For companies carrying out remedial work (like Sondefor), this decision clarifies their situation: they are not subcontractors protected by the 1975 law. This means they cannot demand a surety or approval from the employer. However, they can be directly sued by the employer on the basis of tortious liability (Article 1240) if their work is defective. In Vallauris, a recent case: a drilling company was ordered to pay €18,000 for poorly executed remedial micropiles, because the employer proved that the defects arose from its fault.

If you are in such a situation, you should:
— As an owner: keep all separate quotations and contracts. If a contractor calls in a company for unforeseen works, require a direct contract with that company to clarify responsibilities.
— As a contractor: do not automatically consider a remedial company as a subcontractor. Check the conditions of the 1975 law and assume your liability.

Four Tips to Avoid This Type of Dispute

• Draft a precise initial contract: describe exhaustively the works entrusted to the main contractor. Any subsequent modification (remedial work, correction) must be the subject of a written addendum specifying that it is a separate contract.
• Require a separate quotation for any remedial work: if the main contractor must correct an error, ask them to provide you with a specific quotation from the company that will intervene. This quotation should state that it is a new contract, not a subcontract.
• Check insurance: ensure that the remedial company has professional liability insurance and decennial insurance (10-year guarantee for construction works). Request a certificate before work begins.
• Keep all documents: retain plans, quotations, emails and site photos. In the event of a dispute, this evidence will be crucial to prove who made the error and what works were entrusted to whom.

Further Reading: Related Case Law and Developments

The Court of Cassation had previously ruled on similar situations. In a judgment of 8 July 2009 (No. 08-14.952), it held that the performance of additional works not provided for in the original contract constitutes a new contract, not an addendum to a subcontract. The 2010 decision follows this line.

However, if the remedial works are entrusted to a company that was already a subcontractor on the site for other lots, the classification may differ. For example, if an already approved subcontractor performs remedial works falling within its original lot, it remains a subcontractor. Everything depends on the subject matter of the works.

The trend in the courts is therefore clear: they strictly distinguish between the original contract and the remedial contract. This case law is favourable to employers, as it simplifies recourse. For the future, we can expect judges to be even more attentive to the classification of contracts, especially on complex sites involving several companies.

Frequently Asked Questions

What is a subcontractor?
A subcontractor is a company with which the main contractor deals to perform part of the original contract. It must be approved by the employer and its payment terms must be accepted. The 1975 law protects it by requiring a surety.

Can I refuse to pay the remedial company if the work is poorly done?
Yes, but be careful: if the company has a direct contract with you (new contract), you can take direct action against it. If it is considered a subcontractor, you must first pursue the main contractor. The 2010 decision facilitates direct action against the remedial company.

What are the time limits for legal action after remedial works?
The limitation period (time to sue) is 5 years from the discovery of the damage for contractual liability claims. For latent defects (serious defects), the period is 2 years after discovery. It is advisable to act quickly and consult a lawyer as soon as defects appear.

What if the main contractor brought in a company without my consent?
You can challenge the classification as subcontractor and demand that the company be considered a new contractor. This allows you to take direct action against it. If it caused damage, you can claim compensation from both the main contractor and the remedial company jointly and severally.

Does a separate quotation guarantee that it is a new contract?
Yes, it is a strong indicator. But the courts also look at the subject matter of the works: if they are completely unrelated to the original contract (remedial work for an error, structural modification), it is a new contract. If they are supplementary works of the same nature, the classification may be disputed.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →