Who are some worthless entrepreneurs
The customer does not have to pay for a worthless work
1. The contractor's claim for remuneration does not apply if the work is of no value to the client.
2. If the work has significant defects and therefore has to be rebuilt, it is worthless for the client.
3. The contractor is also liable if the service he has provided is defective and the cause of the defect is (also) the responsibility of a subcontractor. Something else applies if the contractor has fulfilled his obligation to examine and report concerns.
OLG Schleswig, judgment of July 31, 2015 - 7 U 95/14; BGH, decision of November 22, 2017 - VII ZR 215/15 (non-admission complaint rejected)
BGB §§ 631, 633, 649 sentence 2; VOB / B § 4 Paragraph 3, § 13 Paragraph 3
Problem / issue
The contractor (AN) sues the builders of a single-family house for payment of wages for the roof structure created by him. The contractor erected the roof structure, although the previous masonry work did not meet the requirements of the structural engineer and the southern ring bolt made in concrete by the mason (recognizable) was not yet fully cured. Shortly before the work is finished, the southern eyebolt is twisted by the weight of the roof structure and pressed outwards. The builders request the contractor by setting a deadline to dismantle and rebuild the roof structure. However, the contractor makes the improvement dependent on a "legal clarification". The builders then terminate the contract without notice and commission a third-party company to dismantle the existing roof structure and rebuild it. The builders refuse to pay the contractor's final invoice because his work is worthless and unusable. The district court approves the building owner and dismisses the lawsuit. The contractor turns against this with the appeal.
Without success! A contractor is in principle entitled to wage claims for partial services provided by him even after termination. In the present case, however, the contractor's claim to remuneration does not apply because the work he has created is worthless for the builder. The Senate makes it clear that the customer is only obliged to pay the remuneration for the work already performed if the work is essentially free of defects and is usable for the customer. This is not the case - the evidence has shown that the roof structure was unusable due to the lack of a force-locking connection and the insufficient strength of the concrete. The roof would therefore have had to be rebuilt. The contractor is liable even though the cause of the defect is the responsibility of the previous contractor, the bricklayer. The contractor should have checked the preliminary work of the bricklayer, because an entrepreneur is contractually obliged to point out concerns if he recognizes or has to recognize the unsuitability of the preliminary work (see Kniffka / Koeble, Compendium of Construction Law, 4th edition, 6th part - III). The contractor should therefore have convinced himself of the sufficient strength of the concrete, since the strength of the ring beams is a prerequisite for carrying out his work. The contractor did not meet these requirements. Because the roof structure has been completely dismantled in the meantime, the contractor's performance is worthless for the client. The builders are therefore not obliged to pay the wages.
The decision shows how important it is for the contractor to carefully examine the work of the subcontractor and to point out any concerns in good time. Notes of concern should always be made in writing.
RA and FA for building and architectural law Dr. Alexander Boisserée, Cologne
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