In the absence of the flexibility offered by replacement contracts and financing agreements, parties to a contract would remain stuck in potentially undesirable business situations, without having legal problems or withdrawing from the business. Both methods allow for flexibility and offer partners a chance that they may not otherwise have. A replacement contract occurs when two or more parties participate in a joint venture and find that the current agreement is no longer relevant or effective. In this case, the parties replace the original contract with a new contract. This requires the agreement of all parties involved. If the original contract has been written, the replacement contract must also be written. A replacement contract can also be considered an amendment to an agreement if the contract as a whole remains unchanged, but if changes are added to meet certain requirements. Under section 144, paragraph 1, paragraph 4, point a), of the Public Procurement Act, in the case of the substitution of the contractor, it is essentially a modification of the part to the public contract, as opposed to the replacement benefit. As a result, all rights and obligations of the contractor are transferred to a new entity.
The rules for the transfer of rights and obligations are identical to those in art. 509-519 BGB, which govern the modification of contractual relations. A replacement contract is an agreement between parties who participated in a previous contract. The replacement contract replaces the original contract, replaces it in its entirety and triggers the terms of the original contract. The performance of a third party is a substitute for the initial performance; That is why, in such a case, we are faced with a situation in which the original debtor (the contractor) has not complied with his obligations. Accordingly, the obligated (the adjudicator power) claims the original debtor to compensation for the damage resulting from the improper performance of the obligation which required entrusting the benefit to a third party (the judgment of the Supreme Court of Poland of 7 June 2000, case III CKN 441/00). The alternative institution has its reference to Article 480 of the Civil Code. In essence, it is possible for an obligated to submit to an obligation imposed on the debtor at the debtor`s expense if the debtor does not fulfil his obligation within the allotted time (Gdansk Court of Appeal judgment of October 4, 2013, case I ACa 788/12).
The replacement benefit may include a third party performing some of the work that the original debtor should be doing. replacement part: the replacement part identified in the Novation communication. Therefore, the allocation of part of the work does not result in changes to the parties to the public service mission. Only part of the contractor`s commitment is changed; instead of self-fulfilling, the contractor is required to bear the costs of providing third parties. The other rights and obligations of the original contractor arising from the contract, including responsibility for the correct performance of the contract, remain unchanged.