The following Commercial Q&A provides comprehensive and up to date legal information covering:
An analysis of the issues raised in this question will largely turn on the construction of the word ‘subcontract’ and whether, in any given circumstance, the procuring by a party of additional external resources falls within that definition.
We have undertaken a limited case search but have been unable to find any authority in which this point was considered. However, the below information may be useful.
It will first of all be necessary to establish on the facts and in the context of the clause which prohibits it, whether a subcontract has been created. Subcontracting is the delegation by one party of some or all of its obligations under a contract between it and a customer to a third party (the subcontractor) for performance by the subcontractor. Contractual liability for performance of the obligations remains with the original party. See Practice Note: Subcontracting for guidance on general issues relating to subcontracting.
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