問30
頻出度★★☆
民法では, 請負契約における注文者と請負人の義務が定められている。記述 a～c のうち, 民法上の請負人の義務となるものだけを全て挙げたものはどれか。 a 請け負った仕事の欠陥に対し, 期間を限って責任を負う。 b 請け負った仕事を完成する。 c 請け負った全ての仕事を自らの手で行う。
平成23年度 秋期 ITパスポート試験 問30
ストラテジ系法務 › 労働関連・取引関連法規
This question's explanation and your answers so far.
解説
問 30
Incorrectア
Listing a alone is not enough. The liability for nonconformity in a (responsibility for defects borne for a limited period) is indeed an obligation of the contractor, but it is merely an incidental liability that arises after the work has been completed. The most basic obligation of a contract for work, b, the obligation to complete the work, is missing, so this choice does not satisfy the condition of listing all and only the obligations.
- イ
正解 A contract for work is a contract in which the contractor promises to “complete the work” and the orderer pays a reward for that result. The contractor's central obligation is therefore b, the obligation to complete the work, which is the very definition of a contract for work. In addition, if the completed work has a defect (nonconformity with the contract, called kashi under the older terminology), the contractor is liable to the orderer for repair, reduction of the price, damages, and so on. This liability is not permanent: time limits are set, such as requiring the orderer to give notice within a certain period after learning of the nonconformity, so a, “bearing responsibility for a limited period,” is also an obligation of the contractor. On the other hand, there is no obligation like c to carry out all of the work by one's own hand. Because a contract for work delivers a result (the completed work), it does not in principle matter who actually does the work, and subcontracting (re-delegation) is widely practiced. Therefore the obligations of the contractor under civil law are the two items a and b, and イ, which lists only these, is the correct answer.
Incorrectウ
Although a and b are correct, including c is a mistake. A contract for work makes the contractor responsible for the result of completing the work, and civil law imposes no obligation on the contractor to perform all of the work by their own hand (an obligation of personal performance). The contractor may therefore subcontract the work to other companies, and multi-layer subcontracting is common in system development. Treating c as an obligation contradicts this nature of a contract for work.
Incorrectエ
This choice both includes c, which is not an obligation, and drops b, the most basic obligation, so it is wrong twice over. If the obligation to complete the work in b is removed, a contract for work does not come into existence at all. Moreover, the obligation in c to do all of the work oneself is not imposed on the contractor; subcontracting is in principle free.
ここがポイント
- The contractor's obligations under a contract for work rest on two pillars: (1) the obligation to complete the work, and (2) the warranty liability, subject to a time limit, that arises when the completed work has a defect (nonconformity with the contract). The orderer's main obligation is to pay the reward (the price).
- The contractor has no obligation to perform all of the work personally (no obligation of personal performance), and subcontracting to other companies is in principle allowed. By contrast, a mandate contract or a quasi-mandate contract aims not at completing the work but at carrying out the duties with the care of a good manager (the duty of due care), which is what distinguishes them from a contract for work; on the IT Passport exam, the difference between a contract for work and a quasi-mandate is a frequently tested point.
用語