Article II: On the Letting or Undertaking of Making a Work

545. The letting of a work (contrat d'entreprise; aanneming) is a contract by which an architect or artisan or contractor is hired by the owner to produce a certain work by industry or labor for a determined price, for example, to build a house, make a garment, construct a railway (a. 1710). This can be done in a twofold way: namely, so that the artisan furnishes only his work by which he may complete the whole work; or both work and material at the same time (a. 1711 and 1787).

In this contract: 1. the owner who grants the work to be constructed is the lessor, the artisan the lessee; on the contrary, in the letting of services the worker is the lessor, the owner the lessee;

2. the price is established for the completed work, so that it is not owed unless after the lessee has completed the work, unless it has been otherwise agreed; nevertheless in great works the price is usually paid by parts, after the completion of the diverse parts of the work (a. 1791);

3. hence the risk of the work remains with the lessee until it has been completed and handed over (a. 1788), unless it perishes without his fault and from a defect of the material, if this pertains to the owner (a. 1789-1790);

4. the work to be completed is often publicly announced, by setting forth what is to be made, in what manner, from what material, within what time, etc., so that various lessees may be invited to compete, and the work to be made may be committed by adjudication to him who, all things considered, has promised to complete it better and for a lower price (adjudication; aanbesteding), or at least with greater security. For this, good faith is altogether required on both sides: in the lessee, that he sincerely intend to complete the work under the determined conditions for the price indicated; in the lessor, that he commit the work to him who asks the lesser price, provided however that he is suitable for completing the thing well.

546. The obligations of the lessee are:

1. By justice he is obliged to complete the work in that manner which was agreed upon, for example, by preserving the quality of the material, the prescribed form, due solidity, the established time, due diligence, etc.

2. By justice he is obliged to pay a sufficient wage to the workers hired by him, and he cannot diminish it so that he may complete the work at a lower price.

3. He must be content with the established price, for on account of this he obtained the work, by excluding others by the price.

If the lessee complains that he cannot complete the work at the established price, it must be seen from what cause that increase of expenses has arisen. According to common custom, which must be attended to very much, the lessee takes upon himself ordinary risks, but not wholly extraordinary ones, for example, from a wholly unforeseen event, as shifting soil, an inundation of waters bursting forth with extraordinary force among the foundations. In such a case compensation is owed from justice, but not if, for example, the prices of things are changed or the wages of workers are increased: then nothing is owed from strict justice, since the contract is always in some measure aleatory (a. 1793). Nevertheless sometimes something can be owed from equity, for example, if the owner has a great profit from it and the lessee undergoes grave damage; moreover, the owner is not bound easily to believe the complaints of the lessee, but can require certain proof of the damage.

Finally, if in computing expenses the lessee has erred, as from forgetfulness of something, for example, a wall, a gate, etc., the owner more probably must add nothing from strict justice, because it is a contract in some measure aleatory and entered into for a price which was established in a lump as one whole: forgetfulness indeed can happen, but there is also the presumption that there was negligence on the part of the lessee.

It is a sin against justice and of itself induces an obligation of restitution:

a) if the lessee uses notably cheaper material or less diligence, especially when from this the solidity of the work is diminished: for then the part of the wage unduly gained must be restored and the damage repaired;

b) if the lessee by his own fault has completed the work later than was stipulated: he is held to compensate the damage inflicted from this;

c) if inspectors or those watching over the work are negligent: for thus they can cooperate negatively in the injustice of the lessee, and then they are held to restore for it in the second place; but in their own name they must restore that part of their wage which they received undeservedly for vigilance not applied.

547. The obligations of the lessor, or owner, are:

1. He must pay the established price at the prefixed time.

2. If he demands that the thing be made in another manner than had been agreed, or that certain things be added to the work, he must compensate the greater expenses arising from this.

3. If through culpable delay he neglects to accept the finished work, he is held to repair the damage thereby inflicted upon the lessee.

548. Observations. 1. Among lessees sometimes this practice exists: those competing for the public letting of constructing a building agree among themselves that each should increase his estimate by a certain sum of money, which, when the work has been adjudicated, is divided by the undertaker among the other competitors. Or in another way, by common counsel they pre-establish the price of the work to be undertaken, and then by lot or otherwise designate the undertaker who, when the work has been adjudicated, divides a certain determined sum among the remaining competitors.

Concerning this practice Aertnijs notes, Th. M. I, n. 964: "It can seem unjust; for in the mind of the competitors the sum mentioned does not have the character of the price of the work to be undertaken, but of a stipend for compensating the travel expenses of the other competitors; moreover, the lessor is compelled to pay that stipend, who is in no way held to this. Besides, in the latter mode, by an inequitable means they impede the lessor from being able to let at a lower price." Nevertheless he himself does not hold the said practice to be unjust, provided the price is just, namely, that it does not exceed the highest price. "For the use which the competing undertakers predefine for the said sum does not pertain to the matter... Then, concerning the stated manner of acting, it seems the same must be said as... concerning monopoly of sale,... and concerning a pact among bidders at auction, since the cases are similar... It is added that they seem to have a just title for increasing the price, which also excuses them from sin against charity, namely, so that in this way they may keep themselves unharmed for the expenses of journeys, loss of time, and labor, to which undertakers of works are bound, that they may compete in various places, and which they often perform in vain. Finally, that lessors are not too greatly burdened from this is evident from the fact that the public letting of constructing a work is commonly esteemed as a more economical mode of building."

2. Lessees, by giving some sum of money to inspectors to capture their goodwill, sin against justice if they do this to corrupt them, so that they may approve or not reject cheaper material or defective work; but they do not sin if they act thus to redeem themselves from unjust vexation, namely, when they foresee that otherwise the inspectors will unjustly harass them.

3. It is expedient to note several dispositions of civil law. According to several codes:

a) By the death of the lessee the contract is dissolved, so that the lessor must pay only proportionately for that which is useful to him in the work begun. Thus, for example, French, Belgian, Italian, Dutch, Swiss, and Portuguese law.

b) The lessor can renounce the work, provided he refunds the expenses and pays the lessee as much as is of interest to him for the labor furnished and the profit ceasing: thus, for example, French, Belgian, Italian, Spanish, Dutch, and German law.

c) Builders of a building must furnish security of quality for several years, which are ten in French, Belgian, Italian, Spanish, and Dutch law.

d) To the undertaking of a work is also referred the hiring of carriers, concerning which the Civil Code treats expressly, a. 1782-1786.