Recent ruling strengthens the rights of subcontractors

If the client does not raise any objections regarding defects, the main contractor may not do so against their subcontractor either. If the client is satisfied, the subcontractor is also not liable, according to the Berlin Higher Regional Court.

If the client complains no defects The main contractor cannot assert these rights against his subcontractor either, i.e., the Payment They cannot refuse payment for work performed. The right is "passed down from top to bottom." This is demonstrated by a recent ruling of the Berlin Higher Regional Court.

 

The case

In 2014, a Belgian company worked for a main contractor as subcontractorShe supplied and commissioned equipment for digitizing and archiving radio broadcasts. When the company received a [benefit/commission] for its work... on account of almost 200.00 euros, refused The main contractor is now being asked to settle these claims, as the work was allegedly defective. Since the main client had already contacted the main contractor... paid The subcontractor demanded payment from the main contractor. The dispute went to court.

The judgment

The court convicted the main contractor, the subcontractor Contract price plus interest zu numbers. 

The demand was due, because the main client had paid for the work. After Section 641 paragraph 2 of the German Civil Code (BGB) The following applies: If the Main client to the contractor pays The subcontractor is also entitled to demand payment – ​​even if no formal acceptance inspection took place. This is called... "Sustainable enforcement": The payment obligation "penetrates" the contractual chain; as soon as the client pays, the subcontractor's claim against the main contractor arises.

No defects were found.

The main contractor was unable to provide the alleged information. Defects cannot be provenAn expert report was supposed to provide clarity, but it could not be prepared because the state in which the plant is located did not grant permission for the investigation. Since the main contractor burden of proof If he carried the burden, it was at his expense. 

Furthermore, the Main client even no defects On the contrary, she confirmed via email that the problems had been resolved.

No right of retention

Normally, a client may Payment hold back, as long as Defects exist – that is the so-called right of retention according to Section 641 Paragraph 3 of the German Civil Code (BGB)However, this only works if he himself still assumes there are defects. Here, the main client had stated that everything okay that is why the main contractor was able to  not invoked a right of retention against the subcontractor.

"At least when, as in this case, one's own Main client not If the main contractor also invokes a right to refuse performance due to these defects and withholds part of the remuneration or otherwise attempts to enforce his rights regarding defects, he may not based on these deficiencies Right to refuse performance "Appelled," the verdict stated verbatim.

practical tip

"Subcontractors should carefully examine payment retentions and obtain specific information from the main contractor." proof for alleged defects demands "Often, deductions are not justified," advises the lawyer. Sabine Schönewald, Head of Department at Chamber of Crafts Cologne.

Berlin Court of Appeal, Judgment of 18 July 2025, Ref. 14 U 41/20

The advisors at the Chambers of Crafts will be happy to help you with any legal questions!

DHB now also digital!Simply click here and register for the digital German Crafts Journal (DHB)!