Warranty without deduction – even in case of late defects

A tradesperson may not reduce the advance payment for remedying defects, even if the customer has used the work for years. The Federal Court of Justice clarified that such a compensation for benefits is not recognized under the law governing contracts for work and services.

This article is part of the special topic Current building law

Germany's highest civil court has ruled on an important question of contract law. The case concerned a work that the client had been able to use without restriction for years, even though it inadequate was. However, the defects only became apparent later. The manufacturer is not allowed to be held liable because of this long period. Usage the advance payment for remedying defects anyway not availabe based on the principle of "new for old" shorten, emphasized the Federal Court of Justice.

The case

A construction company built a [building/structure] in 2009. Silo It was built to store animal feed for a farmer. The structure served its purpose, but later problems became apparent. Deficiencies: Cracks and large-scale unevenness in the concrete slab. In 2013, the customer complained and initiated independent proceedings to preserve evidence; in 2015, he filed a lawsuit. With this, he demanded... Advance payment of 120.000 euros for the rectification of the defects.

The Higher Regional Court (OLG) Nuremberg shortened However, the advance payment was reduced to €80.000. This was justified by the fact that the deficiency had only become apparent late and the farmer had unrestricted use of the silo until then. to be able to useHe therefore had to consider the longer lifespan of the factory. credit The advance payment should be reduced due to a benefit offset ("deduction for new for old").

The judgment

The Federal Court of Justice (BGH) overturned this decision. "Deduction for new for old" would there also be nicht, The Federal Court of Justice (BGH) clarified that if the defect only manifests itself relatively late and the client has not suffered any disadvantages, the contractor may be liable for damages. If the contractor delays the rectification of the defect, he may, through his... breach of contract Act not better off The federal judges emphasized that such an outcome would contradict the purpose of the law on defects. This also applies in cases like this one, where a defect is only discovered later.

Contractual obligations must be fulfilled.

The rectification of defects serves solely to fulfill the contractor's original contractual obligation to produce a defect-free work. It is intended only to... owed condition produce, according to the Federal Court of Justice. A blanket statement reduction because of a longer period of use of the work, this was not provided for by the legislator and also not system-compliant"According to the Federal Court of Justice (BGH), customers retain their right to a defect-free work, even if a defect only becomes apparent later."

A Compensation for advantages For the entrepreneur, this only applies if the subsequent performance is too real This leads to advantages for the customer – for example, when a higher-quality material has to be used. In these cases, one speaks of the so-called "Costs that would have been incurred anyway", which would have been incurred even with proper initial manufacturing.

Therefore, the farmer is entitled to the full advance payment of 120.000 euros.

Federal Court of Justice, judgment of 27 November 2025, Ref. VII ZR 112/24

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