Article 429 of the Civil Code governs the issue of tortious liability of a party who is not the direct perpetrator of the damage but has entrusted the performance of an act to another person (party) who caused the damage. This is independent liability for one’s own act, separate from the liability of the direct perpetrator, who may be held liable for their own act on the basis of fault.
In other words, a person who has entrusted the performance of an activity to another person may be exempt from liability for damage caused by that person, provided that they prove – in accordance with Article 6 of the Civil Code – that they exercised due care in their selection, assessed in the light of the criteria set out in Article 355 of the Civil Code, or that they entrusted the choice to a professional.
This should be understood to mean that the qualifications of such a person, their education, licences, experience, etc., were thoroughly checked, or that the performance of the activity was entrusted to a professional who, within the scope of their professional activity, is engaged in performing such activities.
A literal interpretation of the provision suggests that, where the performance of an activity is entrusted to a professional, it is not necessary to demonstrate that due care was exercised in their selection; the mere fact of entrusting the performance of the activity to a professional leads to exculpation, as it gives rise to a factual presumption that due care was exercised in the selection by choosing a professional.
Case law further indicates that Article 429 of the Civil Code forms the basis for an entity’s liability for another person’s act in a situation where the person entrusted with the performance of the activity occupies an independent position vis-à-vis the entrusting party. The entrusting party’s liability is based on the existence of a causal link between the entrusting of the task and the damage caused by the perpetrator, as well as on fault in the selection, as the entrusting party is always liable for its own fault. For the entrusting party to be liable, there must therefore be an entrustment of the task, the authority of the person to whom the task was entrusted to act independently, and a functional link between the damage and the manner in which the task was performed (Supreme Court judgment of 15 July 2021, V CSKP 132/21, LEX No. 3269566).
It is also worth noting that the issue of a debtor using third parties to perform an obligation arising from a contract is governed by Article 474 of the Civil Code, not Article 429 of the Civil Code. However, in accordance with Article 474 of the Civil Code: the debtor is liable, as for his own acts or omissions, for the acts and omissions of persons with whose assistance he performs the obligation, as well as for those to whom he entrusts the performance of the obligation (Judgment of the Court of Appeal in Gdańsk of 15 October 2021, V AGa 14/21, LEX No. 3416882).
It should be noted, however, that the effective entrustment of activities to a third party, which under Article 429 of the Civil Code exempts the entrusting party from liability for damage caused by an undertaking professionally engaged in the performance of such activities, does not preclude the entrusting party’s liability for damage caused by their own unlawful and culpable negligence. The exclusion of liability on the grounds of fault in selection does not preclude the entrusting party’s liability where it is possible to attribute to them an act under Article 415 of the Civil Code. Thus, the application of Article 429 of the Civil Code is excluded only in situations where the causative conduct can be attributed to the principal themselves (Judgment of the Court of Appeal in Szczecin of 1 August 2019, I ACa 813/18, LEX No. 2719381).
Frequently asked questions
Am I liable for damage caused by a person to whom I entrusted the performance of activities?
Yes, as the person entrusting the task, you bear independent tort liability for damage caused by another person, even if you are not the direct perpetrator. This liability results from your own fault in selecting the contractor and is independent of the liability of the actual perpetrator of the damage. However, you can be released from this liability if you prove that you exercised due diligence in making the selection.
How can I prove that I selected the contractor with due diligence?
You must demonstrate that you thoroughly verified the qualifications, education, credentials, and experience of the person to whom you entrusted the activities. Alternatively, you can prove that the task was entrusted to a professional, i.e., a person who professionally engages in this type of activity. The mere entrusting of activities to a professional creates a presumption that you exercised due diligence.
Does liability for another’s act apply to every person cooperating with my business?
Liability based on the provision regarding fault in selection applies to situations where the person performing the activity occupies an independent position in relation to you. There must be a causal relationship between entrusting the activity and the damage caused, as well as a functional relationship between the damage and the manner of its performance. This does not cover all third parties, but only those who act independently within the framework of the entrusted task.
Does release from liability for selecting a contractor mean complete protection against claims?
No, release from liability for fault in selection does not exclude liability for your own negligence. If the damage can be attributed to your unlawful and culpable action or omission, you still bear liability under general principles. The provision regarding fault in selection applies only when causative behavior cannot be directly attributed to you.
When do provisions other than liability for fault in selection apply when using third parties?
If you use third parties to perform an obligation arising from a contract, the provisions on debtor’s liability for assistants and entrusted persons apply. In such cases, you are liable for the actions of these persons as if you had acted or failed to act yourself. The situation of tort liability for another’s act by an independent person is different and is governed by separate rules.
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