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Preconditions of the investor’s joint and several liability towards the subcontractor

Summary/Abstract: The application of art. 6471 of the Civil Code, which regulates joint and several liability of the investor (contractor) towards the subcontractors, is highly controversial, as has been indicated by the doctrine and judicial decisions. In the paper, art. 6471 of the Civil Code has been construed in order to trace back the preconditions of joint and several liability of the investor. The divergent views in the doctrine and the judicial decisions have been confronted so as to determine how doubts associated with its application should be addressed. Particular attention has been paid to the issues connected with one specific precondition, namely the investor’s consent. The judicial decisions contain a broad admission that consent be granted by way of an implicit declaration of will. The imperfection of the discussed provision provides ample opportunity for a functional construction – readily used in judicial decisions – which does not always take into account the assumptions about the need to ensure that the investor enjoys a minimum of legal protection.

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