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Who has to take responsibility in the chain of contracts?
Article 5 of law 32/2006 allows the existence of vertical linkages of contracts up to the third level of outsourcing, what motivates arising doubts as to the requirement of joint and several liability to all companies involved in the decentralization of productive, especially if we own literalism of the precept, speaking «.» of the subcontractor who had hired incurring in such breaches and corresponding contractor.”. The three imaginable scenarios, would be the following (157):
(a) all enterprises (principal and subcontractors) respond jointly and severally on the companies subcontractors located in links below, of course in her own line of vertical subcontracting.
(b) the main company jointly and severally respond regarding the subcontractor that was infringing, but the subcontractors of intermediate levels would be exempt from this responsibility.
(c) the main company jointly and severally liable only with respect to the first subcontractor; This is only regarding the second, and so on.
To address this interpretive problem is you can not ignore the diction of article 7 paragraph 1 (158), which establishes that the duty of care extends vertically to all companies contractors and subcontractors involved in the subcontracting chain, this regulates an obligation to communicate or move to the contractor, through the respective beneficial owner companiesthe information or documentation. This without prejudice to merge a specific obligation of monitoring in relation to the duties of accreditation and registration of article 4.2 and the regime or levels of subcontracting of article 5, through the expression “in particular”.
If we assume a literal interpretation (article 3.1 of the Civil Code), the wording of article 7.2 alluding only «.» subcontractor (.) and the corresponding contractor.’, seems to lean for a release from any kind of liability of intermediate subcontractors. However, a joint and systematic interpretation of the first two paragraphs of article 7 casts doubt on the former meaning, since the 1st paragraph is conclusive to extend the duty of care to all the subcontracting chain, specifically clarifying the obligation to communicate or move to the contractor, through their respective beneficial owner companies, information or communicationso it wouldn’t make any sense, established clearly and unambiguously, the obligation for all the chained companies, then release from any liability the consigner companies intermediate.
In this regard, but for different reasons, pronounce a doctrinal sector (159), which argue that from a teleological perspective, and taking into account the definition of subcontractor to article 3, the contractor is responsible for breaches of any of the contractors, whatever the level of subcontracting. Adding that all the subcontractors who are not exempt are responsible for caring for breaches of any of the lower level; Thus, for example, by the lack of contribution to Social Security for workers of the subcontractor to third level are responsible for solidarity, not only the contractor or main employer, but also the first- and second-tier subcontractors; understand it otherwise would mean opening a contrary to the ratio legis portillo to the fraud.
Although in terms of solidarity responsibilities nor fit presumptions or receipt extensive interpretations are, well go to a systematic interpretation of the article as a whole, well go to a teleological interpretation in accordance with the spirit or the ratio legis, it seems better to extend the joint and several liability to all contractors and subcontractors involved in the chain, rather than confining it to the contractor. In support of this hermeneutic position would play the interpretation of the Supreme Court on the chain of responsibilities in the case of article 42 of the ET, in particular, the sentence of the room of the Social of the Supreme Court of 9 July 2002 (RJ/2002/10538), on appeal to the unification of doctrine.
On the contrary, when the possible breaches are exclusive of the contractor and/or the upper-tier subcontractors, we understand that there would be no joint of the lower-tier subcontractors liability, to establish the duty of surveillance vertical cascading down but never in the reverse direction, i.e. a lower level has no obligation of surveillance on the upper levels.