A building has a defect. An individual work performance is performed defective. Even if this is undisputed between the Client and the Contractor, both parties may still have different views on how the defect should be remedied.
Who determines “how” to remedy the defect?
The obligation of the Contractor consists in the procurement of a work free of defects (§ 633 I BGB). If the work is defective, the Client may demand subsequent performance (§ 634 I No. 1 BGB). If the Client demands subsequent performance, the Contractor may remedy the defect or produce a new work according to his choice (§ 635 I BGB). On December 20th in 2017 (Case No. 2 U 1219/16), OLG Nuremberg confirmed the question of who determines the manner of remedying the defect in favour of the Contractor as follows:
“Irrespective of whether the original manufacturing claim or a claim to remedy a defect is the basis, the Contractor can only be ordered to establish a certain owed condition. The technical method by which it (the Contractor) achieves this is left to it, as long as this method is professional and sustainable”.
The Contractor therefore has the option of choosing the method of remedying the defect which is most favourable and simplest for him. However, the way in which the defects are remedied must take account of the construction work carried out to date.
The costs of subsequent performance shall be borne by the Contractor. Consequently, however, only within the scope of the technically necessary and usual manner of the previous construction work. In the case of extra wishes of the Client, for reasons of appearance, sustainability or simply because of a change in taste, the Client will bear any resulting additional costs.
Dennis Wiegard, Lawyer at JASPER Rechtsanwälte, Dusseldorf