Abstract

Joint and several libility of contractors forming a consortium under contracts concluded with sub-contractors

The gloss concerns the Supreme Court judgement of 17 September 2008, court file No. III CSK 119/08, in which the Court was supposed to settle the question of the extent of joint and several liability of parties to a consortium agreement. The author examines issues associated with the legal scope of joint and several liability of parties to the consortium agreement and indicates the defects of the Supreme Court’s concept, including potential negative consequences for all of the participants in the investments process.

The gloss criticizes the concept of joint and several liability of consortium members adopted by the Supreme Court. In light of the views presented on this subject, members of a consortium are jointly and severally liable for the execution of the contract with a sub-contractor on the grounds of Art. 141 of the Public Procurement Law (notwithstanding the provisions of the consortium agreement and the public procurement contract).

The above issues continue to raise doubts in the doctrine and judicial decisions, despite the fact that the regulations governing this matter have changed.