The subcontracting accountancy contract: how does it work?
In the context of its activity, a company may have to subcontract. This practice, which is very common in certain sectors of activity, must nonetheless be the subject of particular attention when drafting the contract.
Subcontracting: legal principle
A subcontract allows a contractor to entrust the performance of a mission (service or production) to a third party, called a “subcontractor”. The Contractor retains the responsibility specific to the execution of the assignment. The natural or legal person on whose behalf the service is performed is called the “owner”.
The contract of subcontracting involving the participation of a third party, it can not exist if the service was concluded on the principle of intuitu-personae. In this case, only the original contractor can perform the service.
A contract is described as “intuitu-personae” when the person with whom the contract is concluded is a decisive element of the contract. (“It must be him and not another”).
the contract of subcontracting In case of subcontracting, the client must be informed and must accept the use of subcontracting and the payment terms of the contract. In addition, the client may freely request the communication of the subcontract (s). In this case, the contractor is obliged to send them.
The obligations of the parties.
In a contract of subcontracting, the subcontractor undertakes to carry out the missions entrusted to him, and to respect the deadlines. It is also bound to an obligation of advice and information on the progress of its mission.
In the event of non-payment, the subcontractor may not deliver the service which was the subject of the contract in application of the right of retention.
The contractor agrees to pay the subcontractor according to the terms of the contract. He is responsible to the client for carrying out the work entrusted to him.
The contract of subcontracting For subcontracts involving an amount exceeding € 5,000 excluding tax, the entrepreneur is bound by a duty of care. It results in a certificate that must allow the contractor to ensure that the subcontractor meets its obligations in social matters (he must not resort to “moonlighting” in particular). The attestation of vigilance is issued by the URSSAF.
The drafting of the contract
The contract of subcontracting is not subject to a particular formalism.
He must nevertheless respect the general conditions of validity of the contracts (Capacity, Consent, Cause, Object).
However, given the implications of the contract of subcontracting (“legally formed agreements are the law of those who made them” Article 1134 of the Civil Code), the parties must be particularly attentive to the drafting of this one .
- The following points in the drafting of the subcontract must be given special attention:
- The contract of subcontracting The price paid and the terms of payment.
- The service to be performed and the modalities to accomplish it.
- Termination of the contract and litigation management.
- The control of the works upon their reception.
- The responsibility of the parties and the direct action
In case of damage between the client and the client, or damage between the contractor and the subcontractor , the liability is described as contractual, and it is based on the existence of a bad contract or not executed. It is therefore the contract that is decisive in determining the amount of compensation.
the contract of subcontracting In case of dispute between the client and the subcontractor, it is in this case the contractual civil liability is engaged. It will then be necessary to prove the existence of a damage , a fault and a causal link between the two.
The direct action allows the subcontractor (in case of failure of the contractor) to act directly against the client to obtain the payment of his performance. This action is however only possible if the subcontractor has been approved by the client.
The subcontract is a contract in its own right.
It binds the two contracting parties and commits them to each other. It is therefore important to respect the clauses of the contract under pain of dispute between the two parties.