Subcontract? Cool you got

    Subcontract is quite a popular topic in our economy. And not only for large, but also for small projects. It's no secret how quite popular freelancers take a good order due to their reputation, and then drop it off to their less fortunate colleagues. And they have a good income without much effort (yes, I know that they have earned this reputation by work) . By the way, for some it will also be a discovery that their scheme is called a subcontract agreement (although something else is written in the agreement head) and is quite well regulated by law. What is it and how to work with it? This is what goes on.


    For a start, a bit of a boring theory. But it is necessary for you to know Zen and in general understand what kind of wondrous you have come across. So, legal relations are absolute and relative. The first, for example, is property relations. The word "absolute" means that you can demand that your rights to property be respected absolutely by everyone. Regardless of whether you have any legal connection. For example, someone dumps garbage on your site. You do not know who it is. But you can ask someone not to do that. Why should this requirement fulfill? He did not sign any papers with you! And because the relationship is absolute.

    And what is the relative relationship? These are those that act only in respect of the parties to the contract. If someone does not participate in the transaction, then you cannot demand anything from him. And he is from you, respectively, too. A short minute of theory is over. Now back to our subcontract.

    From the law about third parties
    Обязательство не создает обязанностей для лиц, не участвующих в нем в качестве сторон (для третьих лиц) (п. 3 ст. 308 ГК РФ).

    Take a simple chain. We have a contract between the customer and the contractor. And then an agreement appears between the contractor and the subcontractor. Two contracts. Two legal connections. Relative. They exist independently and independently of each other . What does this give us? And the fact that the customer and the subcontractor are not connected with each other in any way. Next, for example!


    The customer did not pay the contractor . And he accordingly sent a subcontractor. Are there any such situations? Lot. Should a subcontractor wait for the weather from the sea? No, there is no customer for it at all. He did not sign agreements with him. These are the problems of the contractor. He owes money under a subcontract. Let him seek money or go to court.

    Reverse example. The contractor did not pay the subcontractor. Although the money from the customer received. And the subcontractor, accordingly, does not give the results of work until payment is received. The customer says that, well, guys, all this is good, of course, but I have completed my part of the deal. Understand among themselves, and if you please, give my code. What to do to the customer? Right, go forest. He can not demand anything from the subcontractor, because the customer for him - so he passed by.

    To make it easier to live, you can, in principle, forget the word subcontractor. There is a customer and there is a contractor. Whatever serial number in the food chain of subcontracts you are, whatever sub-subsubcontractor you are (there are perverts who directly call the parties), you are still the customer and the contractor. For convenience, there is the term "general contractor", this is the first contractor in the chain. Yes, even if you have given a poor landing page for subcontracting, then you are called the pathetic word “general contractor”. In fact, the term subcontractor is mostly needed only to show whether the general contractor should or should not do all the work personally. For the rest, the law does not make a difference.

    From the law about the general contractor
    Если из закона или договора подряда не вытекает обязанность подрядчика выполнить предусмотренную в договоре работу лично, подрядчик вправе привлечь к исполнению своих обязательств других лиц (субподрядчиков). В этом случае подрядчик выступает в роли генерального подрядчика (п. 1 ст. 706 ГК РФ).

    Therefore, let's look at common cases.


    I wanted this particular contractor, because he has competence, but in the end, it was not clear who.

    Wonderful. What does the law tell us above? He wants to - submits to the subcontract, does not want - does not give. This is a question of its business processes. His own business. Could you ban it in the contract? What is not banned? Then there is nothing to cry. Get student code.

    And I banned in the contract, but he still attracted. I will not pay!

    Why? Is it somewhere in the law that everything is written, the contract is canceled and everyone is diverging? Work done? Completed. Are there any drawbacks? Nope Then you have to pay. And so continue to engage in disassembly and responsibility.

    And how can I really ban subcontractors?

    Write down specific measures of responsibility: fines, the right to withdraw from the contract, change the price of work, etc. It is necessary to make the involvement of subcontractors simply unprofitable.

    I took the work, can I directly throw money to the subcontractor? And then trust this smart-ass ... the contractor is no more.

    Well, throw it. And then do not forget to throw your contractor again. Because you have a contract with him, and not with a subcontractor, and the debt under the contract is not repaid.

    And if it is written in the subcontract agreement that I directly hand over the work to the customer?

    On the fence, too, a lot of things written. If you are not in a contractual relationship with the customer, and there are no detailed mechanisms in the subcontracting agreement describing work acceptance, then hand over everything to the general contractor. He is your customer. And then another penalty for you will charge for the delay in the execution of works. You did not pass them to him!

    The general contractor said that the customer terminated the contract with him, so I can go with the woods with my works. It's true?

    Not. You remember that the customer has nothing to do with you? Therefore, the forest is already he. If the general contractor wants to run, then he must separately terminate the contract with you. And for him it will have its own independent consequences.

    I accepted the work of a subcontractor, handed them over to the customer, and he found shoals in it and punished me. Can I reintroduce all this to a subcontractor?

    Which way? Work accepted? Accepted. Checked at acceptance? What relation to the subcontractor has what you checked through one job. Suffer now in a rag silently.

    How to get around this

    Since we have freedom of contract and all that, and still quite developed and quite good civil legislation, we can wake up a little creator in ourselves and cover up some of our risks. Let's discuss the most popular methods.


    Payment issues

    If you are a subcontractor , do so. Write in the contract that the right to use the results of intellectual activity is transferred only after full payment. With this phrase, you can dictate your unbending will to both the general contractor and the customer. Because you are moving to the category of absolute legal relations, which even Vasya's neighbor on the entrance should respect. This is no longer a dispute under the contract, because the disputes on copyright and other issues are already completely independent, with their bonuses and buns. Another thing is that a project can simply be abandoned, and your code will not be needed by anyone. Use will not be. Then yes, problem.

    If you are a general contractor, then you can link all payments for the work of the subcontractor to a specific condition - receipt of money from the customer. For quite some time now at first the highest judicial authority resolved it, and then the legislation was corrected. That is, for example, the phrase in the contract with the subcontractor: "Works are payable within 5 working days after receipt of payment for work performed from the customer," was previously declared invalid, and now in the order of things. This is not a guarantee, and in the case of absolutely shameless terms, you can challenge it in court. But this is a topic for a separate article, about the risks of contracts in general.

    From the law about the terms
    Если обязательство предусматривает или позволяет определить день его исполнения либо период, в течение которого оно должно быть исполнено (в том числе в случае, если этот период исчисляется с момента исполнения обязанностей другой стороной или наступления иных обстоятельств, предусмотренных законом или договором), обязательство подлежит исполнению в этот день или соответственно в любой момент в пределах такого периода (п. 1 ст. 314 ГК РФ).

    If you are a customer, and you want to guarantee that there are no problems with subcontractors due to non-payments (and accompanying figs on vegetable oil instead of written code), you can state in the contract with the general contractor that if you are involved in the execution of works, you will pay for their work personally upon the requests of the general contractor . The subcontract must also stipulate that payment comes directly from the customer. No, the general contractor should not disclose its commercial terms. The customer will not know the price and terms of the subcontracting contract, and accordingly the scope of work, too. Just the general contractor, when he hands over the works, says that they must be paid for by this third party. And if he deceives and does not say? In case of problems, he will be responsible for any losses incurred by you, because he will violate your contract directly.

    Timing issues


    If you are a customer , then there is no problem. You have a clear deadline and responsibility of the general contractor. In principle, there is no question and the subcontractor has a default - it is written a month, which means it must be done in a month.

    And if you are a general contractor , and you do not have budgets for advancing your customer (because you pay subcontractors for your hard-earned work), then the contract with the customer should state the terms for postponement of work in case of late payment, and contracts with subcontractors in terms of payments must be linked to the receipt of money from the customer.

    Issues of acceptance of work and ships

    In general, it is very similar to the solution of the issue with payments. If you are a customer and want to guarantee personal acceptance, because you understand that your general contractor doesn’t have real specialists to then re-do the work, you can likewise prescribe in a contract with a general contractor that you submit the subcontracting work to you personally. The same condition must be contained in the subcontract.

    It is better for the general contractor to register in its subcontract agreement that the final acceptance of the work is done after the acceptance of the work by the customer. To this should be attached and the timing for sending motivated failures, and the timing of payment.

    Well, subcontractor, probably, it doesn’t matter who gets to work. The main thing is to pass, and in order not to delay, try to delete everything that you find in the contract from the previous two paragraphs.

    With the courts will be more difficult. In order for the customer to sue directly with the subcontractor or vice versa, the court will need to prove that all the requirements for a single chain have been met. That is, the general contract contained conditions on the relationship directly between the customer and the subcontractor, and the subcontract provided for this reference. Since it is difficult to control the conditions of various contracts in such a small party, which no one else shows to each other, it is unlikely to succeed.


    Conclusions: remember that only the one who signed in your contract will have to you, writing code for a large customer is not the same thing as being involved in this customer through long chains, and the subcontracting agreement is no different from any other. You need to work with him, set conditions and redo it for yourself. Just a subcontract itself is fraught with risks. First of all, because of the numerous illusions that everyone cooks in one pot. No, every man for himself.

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