Austria: Reimbursement of necessary advance services in the event of a breach of the duty to warn

 

In a decision of 17.11.2023, GZ 8 Ob 115/23d, the Supreme Court had to deal with the question of how far the reimbursement of advance services goes in the event of a breach of the duty to warn. The background was the laying of natural stone slabs on the terrace of a newly built house in 2010. In 2017, due to excessive moisture, there was spalling and efflorescence on the stone slabs. The cause was determined to be too low a slope and the lack of waterproofing of the substructure. It was easy to see that the substructure, which was not erected by the defendant, but on which the defendant had to lay the slabs, was defective. The terrace was fully usable from 2011 to 2017, the usual service life of such natural stone slabs is 50 years. The plaintiff requested an amount of approximately € 50,000.00 for the renovation of the substructure and the re-laying of the natural stone slabs. The defendant merely objected that the natural stone slabs had been professionally laid.

Ultimately, the court came to the conclusion that although the slabs had been professionally laid, the unsuitability of the substructure would have been easily recognizable, so that the defendant was responsible for a breach of its duty to warn, since it did not point this out. The plaintiff was therefore entitled to reimbursement of the costs of removing and professionally re-laying the stone slabs, but not of renovating the substructure, since these were costs anyway. If the defendant had pointed out the defectiveness of the substructure in good time, it would have had to be renovated at the plaintiff’s expense at that time as well. The court did not take into account the plaintiff’s objection that at that time it would still have had warranty claims against the installer of the substructure, but now only has claims for damages. This was justified by the fact that in the present case the question of the fault of the builder of the substructure, which is necessary for the claims for damages, did not arise, as this was evident. The plaintiff was therefore no worse off with the claim for damages than with the warranty claims if the warning had been given in good time.

The Supreme Court does not address the difference between the fact that there is no deduction „new for old“ in the case of a warranty claim, but there is in the case of a claim for damages. Perhaps this is because he rightly does not see a „new for old“ deduction as a loss.

Apparently, the defendant did not raise the objection of contributory negligence on the part of the purchaser, in any case the Supreme Court did not deal with it. The defective substructure was made available to the defendant by the plaintiff. Since this was defective, the plaintiff is arguably acting in breach of contract. In such a case, the majority of legal scholars affirm that the person ordering the work is also at fault. The jurisprudence is inconsistent. In this case, the joint responsibility of the purchaser does not require genuine fault because it presupposes illegality, but a mere breach of duty is sufficient (OGH, 22.10.1991, 4 Ob 561/91).

In summary, it must therefore be stated that the contractor who violates his duty to warn is normally not liable for the remediation of the unsuitable material provided, in this case the substructure. At most, this is only different if the customer can no longer fall back on the installer of the material provided. From the point of view of the contractor in breach of the duty to warn, contributory negligence on the part of the client must be objected to in such cases.

 

For further information, please contact:

Konstantin Fischer, Partner

Zumtobel + Kronberger + Rechtsanwälte OG, Salzburg

Email: fischer@eulaw.at

t: +43 662 624500

 

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