The VII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law on contracts for work and services, has ruled on the question of whether a purchaser can have claims for defects if work and services have been performed on the basis of a contract in which the parties agreed that the remuneration for the work and services was to be paid in cash without an invoice and without the payment of turnover tax.
At the plaintiff's request, the defendant had repaved a driveway of the plaintiff's property. According to the findings of the court of appeal, a fee of € 1,800 had been agreed for the work, which was to be paid in cash without an invoice and without the payment of turnover tax.
The Regional Court ordered the defendant, who refused to remedy defects despite a request and a deadline, to pay an advance on costs in the amount of € 6,096, among other things, because the plaster did not have the necessary strength. On appeal by the defendant, the Higher Regional Court dismissed the action. The plaintiff's appeal was unsuccessful.
For the first time, the Federal Supreme Court had to judge a case to which the provisions of the Act to Combat Clandestine and Illegal Employment (Schwarzarbeitsbekämpfungsgesetz, SchwarzArbG), in force since 1 August 2004, applied. It ruled that the contract for work and services concluded between the parties was void due to a violation of a statutory prohibition pursuant to section 134 BGB. § Section 1(2)(2) of the SchwarzArbG prohibits the conclusion of a contract for work and services if it provides that one of the contracting parties, as a taxable person, does not fulfil its tax obligations arising from the work and services owed under the contract. In any case, the prohibition leads to the nullity of the contract if the contractor intentionally violates it and the client is aware of the contractor's violation and deliberately exploits it for his own benefit.
This was the case here. The defendant entrepreneur violated his tax obligation under section 14(2) sentence 1 no. 1 UStG in the version of 13 December 2006 because he did not issue an invoice within six months after the performance of the service. He also committed tax evasion because he did not pay the VAT. In this way, the plaintiff saved part of the remuneration for the work in the amount of the VAT incurred.
The nullity of the contract for work and services means that the purchaser is not entitled to any claims for defects.
Judgment of the Federal Supreme Court of 1 August 2013 - VII ZR 6/13
Lower courts:
LG Kiel - Judgment of 16 September 2011 - 9 O 60/11
OLG Schleswig - Judgment of 21 December 2012 - 1 U 105/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
