Business Contracts

The reform of contract law introduced a provision in the Civil Code on direct actions for payment in view of the infringement that such actions have on the relative effect of contracts and the principle of the equal treatment of creditors. Article 1341-3 of the Civil Code, enacted by Ordinance No 2016-131 of 10 February 2016, provides that “in the cases determined by law, a creditor may take direc …

Direct action against project owner by worker to enforce payment

The reform of contract law introduced a provision in the Civil Code on direct actions for payment in view of the infringement that such actions have on the relative effect of contracts and the principle of the equal treatment of creditors. Article 1341-3 of the Civil Code, enacted by Ordinance No 2016-131 of 10 February 2016, provides that “in the cases determined by law, a creditor may take direct action for payment of his claim against a debtor of his debtor” .

Among the cases of direct action determined by law is Article 1798 of the Civil Code: “ Bricklayers, carpenters and other workmen who have been employed in the construction of a building or other works made for the undertaking, have no action against the person for whom the works were made, except up to the amount owed by him to the contractor, at the time their action is brought”. Introduced from the very outset by the Civil Code of 1804, a direct claim for payment under Article 1798 of the Civil Code is, for private works contracts, the corollary of the legal lien instituted by the Decree of 26 Pluviôse Year II for the benefit of employees or suppliers of materials who hold a claim under public contracts . The Labor Code, referring to Article 1798 of the Civil Code, endorsed the right of workers to take direct action against the project owner, and extended this right “to employees in the building and public works sectors” .

However, the scope of Article 1798 has been limited by various legislative measures, and its provisions are now obsolete.

Before the entry into force of Law No 75-1334 of 31 December 1975 on subcontracting, subcontractors relied on the provisions of Article 1798 of the Civil Code to initiate direct action against the project owner in the event of non-payment by the main contractor. However, the increasing number of contractor bankruptcies led the legislator to establish a specific direct action for payment against a subcontractor who acts against the project owner for the price of the subcontracted contract due to non-payment by the main contractor . Thus, according to the Poitiers Court of Appeal, Article 1798 of the Civil Code, whose aim is to ensure payment for manual labor and which, in particular for the benefit of salaried workers in the construction sector, establishes a genuine direct action for payment of wages against the project owner, on the occasion of the contract concluded by the latter with the employer, is not intended to apply to the subcontractor's direct action against the project owner, due to non-payment by the main contractor, which is governed by the Law of 31 December 1975 .

Two other direct actions for payment, provided for in the Labor Code, encroach on the scope of Article 1798 of the Civil Code. Article L. 8232-3 of the Labor Code offers employees a right of direct action in the event of bargaining: “the aggrieved employee, the social security and family allowance organizations and the paid leave fund [which] may initiate, in the event of the entrepreneur's default, Article L. 8232-3 of the Labor Code offers employees a right of direct action in the event of bargaining: "the aggrieved employee, the social security and family allowance organizations and the paid leave fund [which] may initiate, in the event of the entrepreneur's default, a direct action against the head of the undertaking for which the work was carried out” . Similarly, Article R. 1251-27 allows employees of temporary work agencies to bring “a direct action against the substitute user undertaking, even when the latter has paid all or part of the sums it owes to the temporary work contractor for the provision of the employees”.

Lastly, the introduction by Article L. 3253-8 of the Labor Code  of salary guarantee insurance (AGS - Assurance de garantie des salaires) in the event of bankruptcy proceedings against the employer has significantly reduced the interest in resorting to a direct action for payment under Article 1798.

As stated in the Report to the President of the Republic on Ordinance No 2016-131 of 10 February 2016 reforming the law of contracts, the general regime and the proof of obligations, these provisions only concern direct actions for payment, and not liability or warranty actions, for which the jurisprudential solutions reached in the context of the theory of groups of contracts are not affected by this text. 

This privilege has been codified in Article L. 3253-22 of the Labor Code, which stipulates that: “The sums owed to public works contractors may not be subject to seizure or opposition to the detriment of either employees or creditor suppliers in respect of supplies of materials of any kind used in the construction of works. Sums due to employees as wages are paid in preference to those due to suppliers”.

When the Labor Code was re-codified, the provisions of Article L. 143-8, which stipulated that bricklayers, carpenters and other workmen employed to build, rebuild or repair buildings, canals or any other works whatsoever could make a claim under the conditions set out in Article 1798 of the Civil Code, were included in Article L. 3253-23, which now reads: “Employees in the building and public works sectors may claim direct action or special privileges: 1° Under the conditions set out in Article 1798 of the Civil Code”.

This principle is now enshrined in Article 12 of the Law of 31 December 1975, which distinguishes between private and public contracts, with the subcontractor having a direct right of action in the case of a private contract, and a right to direct payment in the case of a public contract.

CA Poitiers, 23 December 2011, LawLex202300003021JBJ.

Derived from the law on safeguarding undertakings No 845-05 of 26 July 2005, amended by Ordinance No 2008-1345 of 18 December 2008.

Business Contracts

317. Direct action against project owner by worker to enforce payment

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317. Direct action against project owner by worker to enforce payment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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