CONSTRUCTION COMPENSATION FOR IMPROVEMENT COSTS IF YOU CARRY OUT THE IMPROVEMENT YOURSELF CONSTRUCTION DEFECTS IMPROVEMENT BY A THIRD PARTY – WHO PAYS?
04.09.2017
National warranty law is largely shaped by Union law, in particular the Consumer Goods Sales Directive (1999/44/EC). In implementing this directive, Section 932 Paragraphs 2 and 4 of the ABGB stipulates that the transferee has the option of repairing or replacing the goods (primary warranty remedies) and reducing the price or reversing the goods (secondary warranty remedies) as warranty remedies. The transferee can initially only demand that the transferor repair or replace the defective item. This should give the transferor a "second chance" to restore the contractually agreed condition.
Based on these principles, the question often arises in practice as to whether the transferee loses his warranty rights if he improves the defective item himself or has it improved by a third party without asking the transferee to do so. According to the case law of the Supreme Court (most recently 9 Ob 45/17h), in the case of "premature self-repair", the transferee can demand from the transferor the improvement costs that the transferor would have had to have made the improvement. Since the transferor's own costs are usually considerably lower than the costs of improvement by a third-party company, which always charges a profit margin, the transferee must be cautious. In concrete terms, it is strongly recommended to first ask the transferor to make improvements and only make improvements yourself if the attempt to improve the item fails or if the transferor refuses. Otherwise, there is a risk that the transferee will only receive a portion of the improvement costs he himself incurred from the transferor.
In order to avoid a lack of evidence in a civil case following improvements by a third-party company, a preservation of evidence procedure according to Section 384 of the Code of Civil Procedure can provide a remedy. This means that the condition of the defective item is recorded in a report by a court-appointed expert - even before a civil case begins. The advantage for the transferee is that this report can be used in the further proceedings to provide evidence that the item was defective at the time of handover. The costs of the preservation of evidence procedure must initially be borne by the transferee himself. However, these can be reclaimed from the transferor in the context of the subsequent civil case if the case is successful.