Many subcontractors remain under the belief that in the situation of completion of works that went beyond the scope of the subcontract concluded with the contractor, and which were not sanctioned by an appropriate annex to this agreement (concluded in the proper form), they are entitled to claim payment from the investor based on the provisions governing unjust enrichment.
In such cases, the investor is not jointly and severally liable under the terms of Article 647 (1) of the Civil Code, because this provision makes the investor’s liability dependent on the fulfillment of strictly defined prerequisites, which we have already described [here].
Convincing subcontractors of the grounds for receiving payment based on the provisions governing unjust enrichment will not always turn out to be correct. In order to speak of liability based on Articles 405 et seq. of the Civil Code, the following prerequisites must be met:
- enrichment of one entity,
- impoverishment of the other entity,
- a causal relationship between the enrichment and the impoverishment,
- absence of a legal basis for the enrichment.
It is a well-established position that there is no unjust enrichment in cases where the transfer of benefits from the property of the impoverished to the property of the enriched occurs on the basis of a contract between the enriched party and a third party.
In the realities of the investment process, this means that there is no unjust enrichment on the part of the investor if the legal basis for the benefit fulfilled by the subcontractor had its source in the contract concluded between the investor and the contractor.
Thus, there may be a situation in which the works constituting additional works on the grounds of the subcontract, will be within the subject matter of the construction contract concluded between the investor and the contractor, which makes obsolete the possibility for the subcontractor to claim payment under Article 405 et seq. of the Civil Code.