Substitution under a contract of mandate: notification and liability

Substitution under a contract of mandate

Due care versus a result

A contract of mandate (umowa zlecenia) is a contract requiring due care, not a contract requiring a particular result. The contractor must perform the activities covered by the mandate carefully and exercise due care. By comparison, a contract for a specific work (umowa o dzieło) requires a concrete, verifiable result: creating a work that meets the customer's requirements. This distinction is presented by the Polish National Labour Inspectorate (PIP).

When may a substitute be used?

The contractor may entrust performance of the mandate to a third party only when:

• the contract permits it;
• customary practice permits it;
• circumstances compel the contractor to do so.

These are alternative grounds described in the PIP material, in the section “Możliwość zastępstwa” (“Possibility of substitution”).

Notifying the principal and liability for selection

In such a case of permitted substitution, the contractor must notify the principal without delay of the substitute's identity and place of residence. Once notification has been given, the contractor is liable only for failure to exercise due care in selecting the substitute. This rule must be read together with the grounds above for permissibly entrusting performance of the mandate to a third party, as set out in the PIP explanation.

A separate rule: unauthorized substitution

If the contractor entrusted performance to another person without being entitled to do so, and an item belonging to the principal was lost or damaged during performance of the mandate, the contractor is also liable for accidental loss or accidental damage.

The exception applies where the loss or damage would also have occurred had the contractor performed the mandate personally. All these conditions appear in the PIP material.

An optional organizational checklist

The following checklist is a suggestion for organizing arrangements, not an additional legal obligation or a statement that notification must take a particular form. You can use it to check:

• which ground justifies substitution: the contract, customary practice or circumstances compelling its use;
• which activities are to be entrusted to the substitute;
• what information to consider when exercising due care in selecting the substitute;
• whether the notification includes the substitute's identity and place of residence;
• whether the principal was notified without delay.

Using the checklist is optional; the obligation to notify without delay in a case of permitted substitution is not. This article explains the rules described by PIP; it does not resolve a specific dispute or determine the amount of damages.