Defect must be present upon acceptance

Whether a work is defective is generally determined at the time of acceptance. If damage occurs later, the customer must prove it.

This article is part of the special topic "Acceptance: The linchpin for tradesmen's rights".

If no defects are apparent in a work upon acceptance, the burden of proof lies with the client if they later claim damages. The Cologne Chamber of Skilled Crafts reports on this tradesman-friendly ruling by the Federal Court of Justice (BGH).

The case

A tiler had laid tiles in two student residences. After the inspection, some of the joints broke and moisture damage occurred, for which the client held the tiler responsible. The customer demanded Improvement and finally, an advance payment of approximately €79.000 for the replacement work. The tiler refused, arguing that the damage to the grout was due to improper cleaning of the tiles with an acidic cleaning agent.

Both lower courts initially ruled in favor of the client. In their view, the client's warranty claim was irrelevant as to whether the condition of the joints was due to the material or improper cleaning. Even if an unsuitable cleaning agent was used, the Cause of the defect within the tiler's area of ​​responsibility. Because he would have informed the customer Clues must use only neutral or alkaline cleaning products.

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The judgment

The Federal Court of Justice (BGH), however, sided with the tradesman. It referred the case back to the Higher Regional Court for further clarification. The lower court had wrongly failed to determine the cause of the damage; this, however, was crucial for the claim for an advance payment. Had the joints been properly installed, the client would not have a claim for an advance payment, as such a claim presupposes a defect.

No duty to inform violated

Photo: © ginasanders/123RF.com

Since the damage to the joints is undisputed only after acceptance In this case, it cannot be concluded that the work is defective. According to the BGH, the assessment of whether a service is defective depends on the Time of acceptance A defect in a work cannot be justified solely by a condition that occurred after acceptance. The lower court should have considered other causes, especially since the tiler had claimed improper cleaning by the client.

In addition, it is incorrect that the breach of the duty to inform already gives rise to liability for defects This obligation is linked to an existing defect and can relieve a contractor of liability if he has pointed out the potential defect before performing the work. However, it is in no way suitable to establish liability for defects in the first place.

The Court of Appeal, to which the case was referred back, must now determine whether the tiling work was actually defective. Burden of proof, that the joints were already faulty at the time of acceptance, the Client.

Federal Court of Justice, judgment of 25 February 2016, Ref.: VII ZR 210/13