Unpaid subcontractor: direct action, a formidable weapon sometimes overlooked
- May 14
- 3 min read
On a construction site, it's common for the main contractor to subcontract all or part of the work to one or more subcontractors. When everyone fulfills their obligations, everything runs smoothly. But when the main contractor stops paying, the situation can quickly become tense. The subcontractor, despite having worked properly, then faces a very real risk: having worked... without being paid. Belgian law, however, provides them with a particularly effective recourse: direct action.
The project owner pays the subcontractor as if he were paying his contractor
This action, provided for in article 1798 of the old Civil Code , and whose general mechanism is now enshrined in article 5.110 of the new Civil Code , allows the unpaid subcontractor to claim directly what is owed from the project owner, that is to say from the person with whom the main contractor himself contracted.
Let's take a simple example. You have your house renovated and you sign a contract with a general contractor. The contractor subcontracts, for example, the roofing, heating, or electrical work. The work is completed, but the subcontractor is never paid. If they act in time, the subcontractor can then claim payment directly from the homeowner (that is, you) for the amounts still owed to the main contractor.
On the other hand, the project owner can raise against the subcontractor the defenses that he could have raised against the main contractor, as well as those that the main contractor himself could have raised against the subcontractor, insofar as they have a cause prior to the exercise of the direct action.
If a disagreement persists, to avoid being caught in the trap of non-payment, the law allows the project owner to deposit the disputed sums with the Caisse des Dépôts et Consignations (French Deposits and Consignments Fund) or into an escrow account , pending an agreement or a court decision. This deposit becomes mandatory if the main contractor or subcontractor requests it in writing.
The relatively simple implementation of direct action
One of the great advantages of direct action lies in its relatively simple implementation. It can be exercised extrajudicially, notably by registered mail .
Of course, if the client refuses payment, for one reason or another, the subcontractor will have to initiate legal proceedings to obtain an enforceable title and, if necessary, to proceed with the forced recovery of the sums.
Nevertheless, the exercise of direct action makes it possible, in a relatively simple way, to make the sums owed by the project owner to the main contractor unavailable and, thus, to protect to some extent the claim of the subcontractor, in particular against the effects of a possible insolvency of the contractor.
The limits of the subcontractor's direct action
However, this weapon has its limitations.
A subcontractor can never claim more than what is owed to them. Nor can they obtain more than what the project owner still owes the contractor at the time the direct action is brought. In other words, if the project owner has already fully paid the contractor before being properly notified, the direct action will often lose much of its appeal. Conversely, if the project owner ignores a properly notified direct action, they risk having to pay a second time to the subcontractor.
On the other hand, direct action can no longer be brought after the onset of insolvency proceedings, such as the bankruptcy of the entrepreneur. In the event of insolvency difficulties, the situation quickly becomes more challenging, even though the judicial reorganization of the entrepreneur does not, in principle, preclude direct action based on Article 1798.
Direct action by the project owner against the subcontractor
The project owner is not without recourse against the subcontractor either.
Since the entry into force on January 1, 2025, of Book 6 of the Civil Code, and more specifically Article 6.3, § 2, the project owner can now, under certain conditions, directly seek redress from the subcontractor in the event of fault in the execution of the work. This is not, however, a direct action for payment, like that of the subcontractor based on Article 1798, but rather an extra-contractual remedy. This mechanism can prove particularly useful when the main contractor is defaulting or insolvent.
Conclusion
In short, direct action by the subcontractor is a formidable weapon because, in some cases, it allows them to bypass the main contractor and obtain payment directly from the project owner. However, it is essential to understand this mechanism, implement it correctly, and act in a timely manner. In this context, a few days of inaction can sometimes make all the difference.
This article is for informational purposes only and does not constitute legal advice. For any specific questions, it is recommended that you consult a legal professional.
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