In a decision on April 2, 2014, the Federal Court of Justice (BGH) addressed the question of whether a contractor is entitled to claim reimbursement from their supplier for installation and removal costs incurred due to defects in the delivered material, given the contractor's obligation to provide supplementary performance to their client.
The defendant operates a specialized wholesale business for building supplies. The plaintiff manufactures wooden windows with aluminum cladding. He received an order for the supply and installation of aluminum-clad wooden windows for a new construction project and, for this purpose, ordered the profile strips, offered in the price list and required for the aluminum outer shells, in grey-metallic from the defendant. The defendant commissioned another company – its intervener – with the color coating of the profile strips and then delivered them to the plaintiff, who installed the finished windows. Subsequently, the building owner complained about paint flaking on the aluminum outer shells, which – as it turned out – were due to errors during the coating process. Reworking the installed windows is not possible; the aluminum outer shells must be replaced with considerable effort (including, among other things, replastering of the house). The building owner demands defect rectification from the plaintiff and estimates the total costs at €43,209.46. The plaintiff initially sought payment of an additional €23,209.46 from the defendant, taking into account a previously awarded cost advance of €20,000. The Regional Court largely granted the claim. The Higher Regional Court dismissed the defendant's appeal – after a corresponding adjustment of the claim – with the proviso that the defendant is ordered to indemnify the plaintiff against the building owner's claims for damages amounting to €22,209.46.
The appeal on points of law, admitted by the Higher Regional Court, was successful. The VIII Civil Senate of the Federal Court of Justice, responsible, among other things, for sales law, ruled that the plaintiff has no claim for indemnification from the building owner's claims regarding the necessary replacement of the aluminum outer shells pursuant to Sections 437 No. 3, 280, 281, 439, 440 of the German Civil Code (BGB). A claim for damages in lieu of performance due to refused supplementary performance (replacement delivery of defect-free aluminum profiles) does not exist, as these costs would have arisen even with proper supplementary performance (replacement delivery). Furthermore, there is no claim for damages due to the defect in the aluminum profiles supplied by the defendant, as the defendant is not responsible for the defect (Section 280 para. 1 sentence 2 BGB). It is undisputed that no fault of her own can be attributed to her. The fault of the intervener in the color coating is not attributable to her, as the intervener is not a vicarious agent of the defendant with regard to its contractual obligations under the sales contract towards the plaintiff (Section 278 BGB).
BGH Judgment of April 2, 2014 – VIII ZR 46/13
Lower Courts:
Regional Court of Gießen – Judgment of May 13, 2011 – 9 O 20/10
Higher Regional Court of Frankfurt am Main – Judgment of January 24, 2013 – 3 U 142/11
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
