In a decision on 02.04.2014, the Federal Supreme Court (BGH) dealt with the question of whether a craftsman is entitled to compensation for the installation and removal costs incurred by the craftsman due to the fact that he is obliged to provide subsequent performance to his client in the event of defects in the material supplied.
The defendant operates a specialist wholesaler for building supplies. The plaintiff manufactures wooden windows with aluminium cladding. He received an order for the delivery and installation of aluminium wooden windows in a new building project and ordered for this purpose from the defendant the profiled mouldings in the colour shade grey metallic, which were offered in the list and were required for the aluminium outer shells. The defendant commissioned another company - its intervener - with the colour coating of the profile strips and then delivered them to the plaintiff, who installed the finished windows. Subsequently, the client complained about paint chipping on the aluminium outer shells, which - as it turned out - was due to errors during the coating process. A subsequent treatment on the installed windows is not possible; the aluminium outer shells have to be replaced at considerable expense (including re-plastering of the house). The builder demands that the plaintiff rectify the defects and estimates the total costs at € 43,209.46. The plaintiff initially demanded payment of a further € 23,209.46 from the defendant, taking into account an advance on costs of € 20,000 already awarded. The Regional Court predominantly upheld the action. The Higher Regional Court (Oberlandesgericht) dismissed the defendant's appeal - after changing the plea accordingly - with the proviso that the defendant was ordered to indemnify the plaintiff from the builder's claims for damages in the amount of € 22,209.46.
The appeal allowed by the court of appeal was successful. The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales, was successful. Civil Senate of the Federal Court of Justice, which is also responsible for the law of sales, ruled that the plaintiff was not entitled to be indemnified from the claims of the builder due to the necessary replacement of the aluminium outer shells pursuant to § 437 no. 3, §§ 280, 281, 439, 440 BGB. There is no claim for damages instead of performance due to the refusal of subsequent performance (replacement delivery of defect-free aluminium profiles) because ; they would therefore also have arisen in the case of proper subsequent performance (replacement delivery). There is also no claim for damages due to the defect of the aluminium profiles delivered by the defendant because the defendant is not responsible for the defect (§ 280 para. 1 sentence 2 BGB). It is undisputed that the defendant cannot be accused of any fault of its own. The intervener's fault in the colour coating cannot be attributed to it because the intervener is not the defendant's vicarious agent with regard to its contractual obligations towards the plaintiff (§ 278 BGB).
Judgment of the Federal Supreme Court of 2 April 2014 - VIII ZR 46/13
Lower courts:
LG Gießen - Judgment of 13 May 2011 - 9 O 20/10
OLG Frankfurt am Main - Judgment of 24 January 2013 - 3 U 142/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
