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Remedy of the defects – but how?

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

Published in Building law