In terms of construction, many companies use subcontractors to perform certain services (electricity, plumbing, etc.).
These subcontractors have no contractual relationship with the project owner, who is only bound with respect to the main contractor whom he commissioned with the work.
The choice of subcontractors, their conditions of intervention and their remuneration are therefore foreign to the contracting authority, who sometimes does not even know the identity of the subcontractors.
Under these conditions, in the event of non-performance or poor workmanship, it is from the main contractor that the contracting authority will most often try to obtain accounts and possible compensation.
The solution is logical: the main contractor is the main interlocutor of the project owner who asked him to complete the work in full for remuneration. It is therefore he who will respond to any breaches by subcontractors to the contracting authority, without being able to oppose to the latter its possible approval of the subcontractor (Cass. Civ. 3rd, March 13, 1991, no. 89-13833).
However, the main contractor screen does not exempt the defaulting subcontractor from liability since he will in any event be liable for the non-performance of his obligations towards the main contractor (I). In some cases, he may even be directly liable by the project owner (II) and by third parties (III).
I — Contractual liability towards the main contractor
In the classical way, when the contractor sees his responsibility incurred by the project owner in the event of non-performance of the work or poor workmanship, he tries to turn against the subcontractors who may have participated in the part of the defective work.
The subcontractor must then indemnify the main contractor as soon as he has not performed the service in accordance with the subcontract, unless he demonstrates a fault on the part of the main contractor or a case of force majeure (Cass. Civ. 3rd, December 3, 1980, no. 79-13219).
In this case, it is a contractual liability so that the sole non-performance of obligations by the subcontractor gives rise to compensation.
In this respect, case law is particularly severe with regard to the subcontractor since it considers that the subcontractor, required to deliver a work free of defects, must personally ensure the conditions for installing the work and cannot be satisfied with any indications from the main contractor (C).ass. Civ. 3rd, April 11, 2012, no. 11-15313).
II — Tort liability towards the contracting authority
Although they are not contractually bound, the contracting authority may also incur the liability of a subcontractor provided that he justifies that the subcontractor committed a fault causing him harm (Cass. Civ. 3rd, November 26, 2014, no. 13-22067).
In such a case, it will then be up to the contracting authority to justify the subcontractor's breaches and the damage suffered, without being able to content itself with invoking the sole non-completion of the work (Cass. Civ. 3rd, January 10, 2001, 99-13897).
In practice, the responsibility of subcontractors will be sought by the contracting authority when the main contractor is insolvent and the latter's insurers could not be blamed.
III — Responsibility of the subcontractor towards third parties
Finally, when performing its service, it may also happen that the subcontractor causes harm to third parties. This will be the case, for example, if, while working in an apartment, he damages the neighboring apartment.
In such a case, the subcontractor may have his tortious liability incurred by any person who has suffered damage due to his fault, without being able to turn against either the project owner or the main contractor (Cass. Civ. 3rd, September 22, 2010, No. 00-11007).
In other words, the subcontractor will respond alone, without being able to discharge its responsibilities, for any damage caused to a third party as a result of its intervention.
The solution is logical: the subcontractor is not acting in a relationship of subordination with respect to the main contractor so that the latter could not be held responsible for the subcontractor's breaches.
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