Cass. 3e civ. 21 January 2021, no. 19-22.219, Sté Eiffage Construction Côte d’Azur, ECLI:FR:CCASS:2021:C300103
Although many of the provisions of the 1975 Subcontracting Act are merely dispositive, provided that the stipulations of the contract are negotiated, Article 14, which deals with the surety of the principal contractor, stands out as being of public policy: it cannot be derogated from under penalty of nullity of the contract.
The decision of the Court of Cassation brings a new, restrictive, look to the regime of the surety.
Thus, traditionally, the surety must be taken out by the main contractor before the conclusion of the subcontract, and in any event, before the subcontracted work begins.
This rather strict regime has led in practice to the development of suspensive conditions concerning the main contractor’s surety, particularly under the advice of the French Building Federation (FFB). The decision of the Court of Cassation has completed the protection of the subcontractor by rendering null and void any contract concluded with a surety subject to a suspensive condition. This nullity, which stems from Article 15 of the 1975 Act, is intended exclusively to protect the subcontractor, so that this case law cannot be invoked by the main contractor.
Following this decision, it is necessary to check the conformity of the General Conditions, as the FFB’s recommendations on the subject are outdated, but also the settlement of current contracts to avoid disputes that could lead to the invalidity of the subcontracting.