CONTRACTOR’S OBLIGATION TO WARN IN THE EVENT OF INADEQUATE PREPARATION WORK
05.10.2017
During the construction or renovation of a building, several contractors are usually commissioned to provide work. They are usually forced to cooperate, either because they are constructing related or immediately adjacent trades or because their trades are based on the preliminary work of other contractors. The extent to which this obligation to cooperate extends in individual cases is often disputed and is therefore the subject of decisions by the highest courts.
According to § 1168a ABGB, the WU is obliged to check the material provided by the customer for obvious unsuitability and his instructions for obvious inaccuracy. If he fails to do so, he is liable for any damage caused. The term "material" refers to everything from or with which the work is to be produced. This also includes preparatory work by other WU or by the customer himself.
If several WUs work together on a project, there is a mutual duty to inform and monitor each other. This also applies if none of them has been appointed as the general contractor (“technical closeness”). In the case of joint production of a project, their contracts with the WB form an economic unit. Each WU is obliged to avoid anything that could thwart its success, in particular the duty to monitor the work of other WUs.
In a recent decision, the Supreme Court (OGH) made it clear that such a coordination obligation does not exist if the work of the participating WU represents two separate trades. This is particularly the case if the two works are not technically related. In this case, there is no "technical closeness". In the specific case, the defendant was commissioned to build a thermal insulation facade. A tiler was commissioned to renovate the terrace above the living room. The sealing used by the tiler did not comply with the rules of architecture. The defendant nevertheless began to attach the thermal insulation panels after the lower structure of the terrace. The defendant did not check whether the sealing of the terrace on the top had been carried out correctly. In this case, the OGH denied the defendant's liability due to the lack of technical connection. This was despite the fact that the defect would have been noticed during a visual inspection. In the opinion of the OGH, the fact that the defective sealing can lead to damage to the facade does not give rise to liability.
In summary, WU are obliged to check the work of other WUs, provided they are working on the same trade, and to point out any defects. However, the duty to warn only applies within the scope of their own obligation to perform. Work by other WUs, which is not technically compatible with their own work,