The joint responsibility of the client

Civil

by Luca D’Addesio *

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Taken from Top24 and Smart24

The express notion of solidarity (and, in a broader sense, of joint liability) is sanctioned by art. 1292 of the Civil Code, on the basis of which “the obligation is joint and several when several debtors are all obligated for the same performance, so that each can be forced to perform the entirety and the performance by one frees the others“.

The recent ruling Cass. Civ. 22.11.2021, no. 35962 leads to further reflections on the issue of the client’s joint liability in the context of the tender contract.

In the reasons, the Supreme Court returns to the differences between the code discipline referred to in art. 1676 and that contained in art. 29 of Legislative Decree 276 of 2003 (“Biagi Decree”) and reiterates the distinct scope of application of the two cases.

1. The concept of joint liability in the contract.

By joint liability we mean the particular situation in which two or more subjects are required to perform the same service.

The express notion of solidarity (and, in a broader sense, of joint liability) is sanctioned by art. 1292 of the Civil Code, on the basis of which “the obligation is joint and several when several debtors are all obligated for the same performance, so that each can be forced to perform the entirety and the performance by one frees the others“.

In the context of the contract, in order to protect the workers employed in the construction of the work or in the provision of services, the law imposes a detailed regime of joint and several liability on the client for any default by the contractor.

The object of this liability is constituted by the salaries (including severance indemnities), social security contributions as well as insurance premiums due to the contractor’s employees in relation to the period of execution of the contract.

2. Direct action in the discipline dictated by art. 1676 of the Civil Code.

In the context of the procurement law, the discipline of the client’s joint liability is contained in art. 1676.

The provision in question grants the contractor’s employees direct action against the customer to obtain the amount due in execution of the contracted work or service, up to the amount of the customer’s debt for the consideration due to the contractor.

This provision is substantially neutral for the client, who is liable, with reference only to salary treatments, within the limited limits of his debt to the contractor.

Therefore, the rule does not contemplate joint responsibility of the client for social security treatments and insurance premiums.

From the moment in which the contractor’s auxiliaries turn to the client, even out of court, for the payment of the amount due, the latter becomes a direct debtor towards the auxiliaries themselves, up to the amount of the debt for the consideration for the contract.

Therefore, in the event that the contractor has fully obtained the consideration agreed for the contract or, correlatively, has paid the wages to its auxiliaries, the joint and several liability of the client automatically ceases.

3. The special regulation pursuant to art. 29 of Legislative Decree 276 of 2003.

The art. 29 of Legislative Decree 276 of 10.9.2003 introduced significant innovations regarding the joint liability of the customer in the context of the procurement contract, further strengthening the protection of the contractor’s employees. Based on this provision, the customer is obliged in jointly with the contractor (as well as with each of the subcontractors) within the time limit of two years from the termination of the contract, upon payment:

• the salary and social security treatments due to the workers employed in the contract;

• of the portions of severance pay (TFR), as well as

• of the insurance premiums of the workers employed there, accrued limited to the period of execution of the contract itself.

Unlike the case in the law, the client is unlimitedly liable towards the employees, regardless of any debt to the contractor, within the limit of two years from the termination of the contract.

4. The relationship between the two disciplines.

Having briefly defined the salient features of joint liability in the context of the contract, it is possible to draw up a comparison between the two provisions in question, in the light of the recent sentence of the Cassation.

The aforementioned provision states that the case referred to in the “Biagi Decree”, far from being an exceptional rule, aims to ensure broad and uniform protection of the contractor’s employees.

Otherwise, the art. 1676 code civ. ensures the contractor’s employees a direct remedy against the customer for the sole payment of wages, the exercise of which is, however, subject to the existence of the customer’s debt to the contractor.

In more detail, the Court states that the aforementioned actions have distinct fields of application and can in any case be combined in the same proceeding.

In any case, the residual nature of the joint and several liability pursuant to art. 1676 code civ. and related direct action.

Indeed, once the two-year limitation period has expired, the proposition of the action pursuant to art. 29 of Legislative Decree 276 of 2003 is definitively precluded.

Therefore, direct action pursuant to art. 1676 code civ, remains the only action that can be taken, provided that there is a residual debt of the client for the consideration due to the contractor, of the existence of which, the worker who will take legal action must provide full proof.

* by the lawyer Luca D’Addesio of B&C Legal and Compliance

The joint responsibility of the client