27.09.2019
Does a contractor who is to complete a work that has already been started have a duty to check and warn about the work that was already carried out by the previous contractor? In other words, does a contractor have to take responsibility for the preparatory work of other trades?
According to § 1166 ABGB, a work contract exists if the material from which the item to be manufactured is made is provided by the customer. "Material" is to be interpreted very broadly. According to the prevailing opinion, a work (delivery) contract also exists if the contractor provides the material, but the work is to be manufactured according to the customer's specific needs (OGH 3 Ob 318/51 (RS0021657); 2 Ob 85/05x; 5 Ob 111/12b). The basic rule for work contracts is that the contractor is liable for the materials he contributes to the production of the work if these are unsuitable or defective. If, on the other hand, the work fails due to the obvious unsuitability of the material provided by the customer or obviously incorrect instructions from the customer, the contractor is only liable for the damage according to § 1168a ABGB if he did not warn the customer.
The Supreme Court (6 Ob 67/19z) recently had to deal with the following case: A building contractor began excavation work to build a pool on a property, but never completed it. The client then commissioned another building contractor to carry out the excavation work (or rather to complete it) and to subsequently build the pool. As a result, the winter garden of the single-family house on the property in question sank, which led to cracks in the entire structure in the facade and window area and on the terrace. The client then sued the second building contractor, claiming that (in short) he was to blame for the excavation work on the pool having caused damage to the house.
The Supreme Court first explained the fundamentally relevant legal situation: Section 1168a ABGB also applies in the case of insufficient preliminary work by other tradespeople, which forms the basis of the work ordered (OGH 3 Ob225/58 (RS0025649)). A duty to warn therefore also exists if the contractor has taken over a work that was poorly started by another contractor of equal standing in order to carry out further work on this work (OGH 8 Ob 55/63 (RS0021901)). The Supreme Court referred to an older decision in which it had been stated that a contractor commissioned to cover concrete steps should have noticed that the steps had been improperly manufactured by another contractor who had previously worked on them. This was justified at the time on the grounds that the term "material" within the meaning of Section 1168a ABGB also includes preliminary work by another contractor, on which the contractor must build (OGH 8 Ob 579/90). The same applies to preparatory work carried out by the customer himself (OGH 7 Ob 82/97b). According to established case law, the duty to provide information does not go so far that the contractor must assume that his (expert) “foreman” did not work properly (OGH 7 Ob 82/97b; critical Kletecka in Kletečka/Shower, ABGB‑ON1.03 (2018) § 1168a Rz 42), but there is still a duty to warn.
According to the Supreme Court, in the present case it must be taken into account that the damage was due to the fact that the defendant had not recognised that the foundation had been built improperly by the first contractor to build the conservatory; if he had carried out a survey of the depth of the conservatory foundation, as is customary in construction practice, the damage could have been avoided by subsequently improving the soil. This could in principle be interpreted as a breach of the duty to warn.
On the other hand, it is worth noting that another construction company had already started excavation work before the defendant took action, which is why the defendant, who arrived at a construction site that had already begun, did not have to assume that his foreman had failed to carry out the inspection that is customary in the construction industry. In this special situation, it would be an overstretching of the duty of care to require the defendant construction company to start again from scratch and first inspect the foundation of the winter garden, especially since from a technical point of view such an inspection would have made sense primarily before excavation work began. This would mean that a (re-)inspection would only have been required if there were already indications of inadequate preliminary work without further investigation, which was not the case.
This decision gives construction companies that are supposed to complete projects that have already begun the cautious justification to assume that the foreman has worked properly. The construction company only has a further duty to inspect and warn if poor preparatory work can be seen superficially and without further investigation and it can therefore be assumed that damage could occur if the project that has already been started is continued. Because it always depends on the individual case whether there is a duty to inspect, it is of course advisable to check more thoroughly, within reasonable limits, whether the foreman has worked "cleanly". If the contractor warns and the customer insists on completion despite this, the contractor is entitled to his wages but is not liable for damages. If in doubt, it is therefore necessary to inspect and warn (in detail, i.e. specifically!) if one does not want to risk a lengthy legal process.