{"id":5281,"date":"2026-11-13T13:19:38","date_gmt":"2026-11-13T13:19:38","guid":{"rendered":"https:\/\/sawaryn.com\/?p=5281"},"modified":"2026-11-13T13:20:56","modified_gmt":"2026-11-13T13:20:56","slug":"construction-site-theft-before-acceptance-insurance-gap","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/construction-site-theft-before-acceptance-insurance-gap\/","title":{"rendered":"Theft from a construction site before acceptance. Why the contractor pays and how to close the gap in the insurance policy."},"content":{"rendered":"

The cable is in the ground. Some sections have been switched into service and are operating on the live network. There has been no final acceptance. At night, thieves arrive and cut out several hundred metres of copper. The question asked in every construction company at that point is: who pays for it<\/strong>.<\/p>\n

Common sense suggests: not us, because we have no control over it. The cable is operating for the employer, and we have no physical access to it without a track possession. But the law says otherwise. Until the works are formally taken over, the risk of their loss rests with the contractor<\/strong> \u2014 regardless of fault and even where a criminal offence has been committed by a third party. Worse still, the insurance policy you paid for probably ceased to provide cover on the day the cable was switched into service.<\/p>\n

Police reports show that thefts of railway infrastructure are a recurring phenomenon: in one case, 18 offences, more than 30 tonnes of copper and losses exceeding PLN 1.1 million; in another \u2014 approx. 1,200 m of cable and losses of PLN 220,000 (Police \u2014 criminal group dismantled, thefts of railway infrastructure<\/a>). At two construction sites \u2014 several hundred metres of copper cables and several thousand metres of overhead contact lines, with a total value of PLN 450,000 (Police \u2014 large-scale copper theft<\/a>). The theft of copper from a linear construction project in Poland is not force majeure. It is a normal and foreseeable event \u2014 which is precisely why infrastructure contracts require this risk to be insured.<\/p>\n

In this article, I explain why the answer suggested by common sense is wrong. I show exactly where the boundary for the transfer of risk lies, what \u201ctemporary use” really means and what the gap between the contractual risk period and the insurance coverage period<\/strong> looks like \u2014 a gap that can last for months in phased contracts. Finally, I set out specific measures: what to negotiate before signing the contract, what to do during performance and what to do in the first 24 hours after a theft.<\/p>\n

Key concepts you need to know<\/h2>\n

Before we go any further, here are several terms that appear in every construction contract and every insurance policy \u2014 and confusing them can be costly.<\/p>\n\n\n\n\n\n\n\n\n\n
Concept<\/th>\nWhat it means<\/th>\nWhy it matters<\/th>\n<\/tr>\n<\/thead>\n
Remuneration risk<\/strong><\/td>\nThe obligation to deliver the completed facility under Article 647 of the Civil Code \u2014 the contractor must reinstate the stolen scope for the same remuneration, regardless of fault<\/td>\nThis is not liability for damages. It is the cost of performing the same work twice<\/td>\n<\/tr>\n
Taking-Over Certificate<\/strong><\/td>\nA document confirming that the works have been formally taken over by the employer (FIDIC Sub-Clause 10.1)<\/td>\nOnly then does the risk of loss pass to the employer<\/td>\n<\/tr>\n
CAR\/EAR policy<\/strong><\/td>\nContractors\u2019 All Risks (CAR) or Erection All Risks (EAR) insurance<\/td>\nIt should provide cover from the signing of the contract until the Taking-Over Certificate \u2014 but it often ends sooner<\/td>\n<\/tr>\n
Temporary use<\/strong><\/td>\nA contractual arrangement under which the employer uses part of the works before formally taking them over<\/td>\nIt does not transfer risk to the employer or trigger the defects notification period<\/td>\n<\/tr>\n
Waiver of subrogation<\/strong><\/td>\nThe insurer\u2019s waiver of its right of recourse against specified entities (Article 828 \u00a7 1 of the Civil Code)<\/td>\nWithout this provision, an insurer that pays compensation to the main contractor may sue the subcontractor<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Why intuition is misleading \u2014 the contractor bears the risk until the works are formally taken over<\/h2>\n

Remuneration risk, not liability for damages<\/h3>\n

The contractor is not charged because it was at fault. The obligation to deliver the completed facility under Article 647 of the Civil Code means that if an incorporated component is stolen, you must reinstate it for the same remuneration. Article 652 of the Civil Code confirms that a contractor that has formally taken possession of the construction site is liable for damage on that site until the facility is handed over (I CSK 1907\/25 \u2014 Supreme Court<\/a>). In case IV CSK 368\/14, the Supreme Court confirmed that a contract may expressly impose an obligation on the contractor to protect completed work until acceptance \u2014 and the facts of that case involved the theft of a power cable (IV CSK 368\/14 \u2014 Supreme Court<\/a>).<\/p>\n

Arguments that do not work<\/h3>\n

The three most common arguments I hear from contract teams \u2014 and why none of them will relieve you of the risk:<\/p>\n\n\n\n\n\n\n\n
Argument<\/th>\nWhy it does not work<\/th>\n<\/tr>\n<\/thead>\n
\u201cTheft is a criminal offence committed by a third party \u2014 force majeure”<\/td>\nTheft of copper from a linear construction project is a normal and foreseeable event. Article 471 of the Civil Code presumes the debtor\u2019s liability \u2014 it is for the contractor to prove that it exercised due care<\/td>\n<\/tr>\n
\u201cThe cable is not our property; it belongs to the utility operator”<\/td>\nTitle to property and the risk of loss are two different categories. No construction contract links the definition of the works to title to property<\/td>\n<\/tr>\n
\u201cWe invoiced this scope and the employer paid”<\/td>\nAn interim payment does not transfer risk. Nor do completion of the works, notification of readiness for acceptance, commissioning, physical incorporation of the component or transfer of title to the material<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

What exactly transfers the risk<\/h3>\n

The risk transfers only upon the taking over of the works in accordance with the contractual procedure<\/strong>:<\/p>\n

    \n
  1. Under the FIDIC model \u2014 a final acceptance report plus a Taking-Over Certificate<\/strong> (Sub-Clause 10.1)<\/li>\n
  2. Under the Civil Code model \u2014 the acceptance report alone<\/li>\n<\/ol>\n

    There is one automatic mechanism worth remembering: if the engineer remains silent after the deadline for issuing the Taking-Over Certificate has expired (typically 28 days from the application), the certificate is deemed to have been issued on the last day of that period. This is one of the few cases in which risk passes without the other party\u2019s consent.<\/p>\n

    And one more point: if the employer refuses acceptance without justification, this constitutes creditor\u2019s delay (Article 486 \u00a7 2 of the Civil Code) and a breach of the duty to cooperate (Article 354 \u00a7 2 of the Civil Code). The contractor may argue that the risk passed at the time when acceptance should have taken place.<\/p>\n

    The temporary-use trap<\/h2>\n

    The FIDIC standard (Sub-Clause 10.2) links the employer\u2019s use of part of the works to taking them over. Polish infrastructure contracts change this. The Model Particular Conditions of Contract amend Sub-Clause 10.2 by introducing the concept of temporary use<\/strong> (Model Particular Conditions \u2014 gov.pl<\/a>).<\/p>\n

    The National Appeals Chamber confirmed this arrangement in two rulings:<\/p>\n

      \n
    1. KIO 1121\/16<\/strong> (21.07.2016): FIDIC Sub-Clause 10.2 permits temporary use and the contractual separation of the associated risks (KIO 1121\/16<\/a>)<\/li>\n
    2. KIO 235\/22<\/strong> (21.02.2022): temporary use of a section does not start the defects notification period<\/li>\n<\/ol>\n

      What this means for your company:<\/p>\n\n\n\n\n\n\n\n\n
      What temporary use does not<\/strong> do<\/th>\nWhat it does<\/th>\n<\/tr>\n<\/thead>\n
      It does not constitute taking over of the works<\/td>\nThe employer assumes the costs of ordinary wear and tear and maintenance<\/td>\n<\/tr>\n
      It does not result in a Taking-Over Certificate<\/td>\nThe employer uses the section<\/td>\n<\/tr>\n
      It does not transfer care of the works<\/td>\nThe contractor continues to bear the risk of loss<\/td>\n<\/tr>\n
      It does not start the defects notification period<\/td>\nThe contractor has no access without a possession granted by a third party<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      Theft is not ordinary wear and tear. Vandalism is not maintenance.<\/strong> Liability for a component operating on a live network to which you have no access \u2014 remains with you.<\/p>\n

      Contact us<\/a> \u2014 we will help you determine whether your contract contains a temporary-use clause and what risks arise from it.<\/p>\n