Abstract

In the commented decision, the Supreme Court espoused the view that a contractor’s performance under a construction work contract is divisible. The gloss, which approves of the decision, summarizes the Supreme Court case law on divisibility of contractors’ performance, distinguishing three main views presented therein. The gloss then discusses the significance of the commented decision for the construction sector, especially in relation to the effects of withdrawal from construction contracts under a statute. The practical importance of the decision follows from the fact that if a contractor’s performance is deemed divisible, the withdrawal affects solely the unperformed part of the contract, which entails practical consequences for the financial settlement between the parties. Although the Supreme Court’s espousal of the view on divisibility of a contractor’s performance was, in a sense, a means to secure the possibility of partial withdrawal from construction contracts, this means – compared to other discussed solutions – appears to be the only one to ensure an appropriate level of legal certainty and meet the sector’s expectations. Moreover, the gloss discusses another important issue raised in the commented decision, namely the premises of withdrawal from a construction work contract under Art. 635 of the Civil Code.