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It is well known that the legislations main objective is to regulate the relations between different parties and to ascertain obligations and rights that fall on and to different parties.
This article will shed the light on an important relationship in the field of constructions, whereby the legislator has interfered in order to protect the weaker side of the equation, the sub-contractor, as it is known that the legislator protects weaker parties and especially in contractual relations that result in mutual contractual obligations, protecting weaker parties will result in achieving the main objective of any legislator; protecting the community and maintaining its stability.
Article 701 of the Qatari civil code states that:
- “The contractor may delegate all or part of his work to a subcontractor unless otherwise provided by the contract, or unless the personality of the contractor is considered in the light of the nature of the work.
- However, the obligations of the main contractor to the employer shall remain effective and the contractor shall be liable to the employer for the works performed by the subcontractor.”
This article clearly states that contractors can delegate sub-contractors as long as there is no contractual clause prohibiting such act, but that is not the only condition, as when delegating a sub-contractor, the contractor’s personality or personal skills must not-originally- be of consideration or the main reason behind establishing the contractual relation the in the first place, this allowance of delegating certain jobs to sub-contractors doesn’t mean in any way that a contractual relation is established between the employer and the sub-contractor.
Since the Qatari legislator respects the principle of pacta sunt servanda as mentioned in article 171 of the civil law, then and with accordance with the aforementioned principle and article, no contractual relation is established between the sub-contractor and the employer, as the contract is only binding among its parties- (employer and contractor) and not third or other parties(sub-contractor).
How the legislator interfered in sub-contractor’s protection?
Article 702 of the civil code states that:
- The subcontractor and laborer’s working for the account of the main contractor to perform the work shall be entitled to directly demand the employer to pay their dues to the extent payable by the main contractor at the time of the claim. The employees of the subcontractor shall have the same right against the main contractor and the employer.
- The subcontractor and laborer’s may, at the time of imposing attachment against the employer or the main contractor, hold a lien on the amounts due to the main contractor from the subcontractor at the time of the attachment, pro rata to the right of each of them. Such amounts may be paid to the subcontractor or laborers.
- The rights of the subcontractor and laborers as provided under this Article shall have priority to the rights of any party to whom the contractor may assign his right against the employer.
In this article, the legislator properly addressed the absence of any contractual relation between the sub-contractor and the employer in regards with sub-contractor’s fees and payments, whereby it allows the subcontractor -in case of a contractual breach by the contractor- to demand his rights directly from the employer, where the employer can’t claim that there is no contractual relation between himself and the subcontractor and is obliged to commit to the contractor’s obligations towards the sub-contractor.
To conclude, the employer shall pay the sub-contractors dues and can’t argue on the basis of the absence of a contractual relation, his only way of defence is proving that he previously committed to his contractual obligations towards the contractor, unless proven so, the employer can’t escape from the fact that he is responsible in front of the sub-contractor (the weak party that is being protected).
Authors: Ms. Islam Al-Bayed & Contributor Mr. Mohammad Mufid Ratib Qurashi