Acceptance and warranty

In a ruling by the Bergisch Gladbach Local Court on 29.08.2014, warranty claims were awarded due to defective performance of a work. The work was initially accepted by the client’s representative without complaint. The asserted defects are predominantly visually perceptible. This was also the case at the time of acceptance. It would therefore have been logical to reject the asserted warranty claims on the grounds that the warranty is excluded by the acceptance with regard to the visible defects.

Verdict

(…) The defendant is ordered to pay the plaintiff € 2,100.35 plus interest in the amount of 5 percentage points above the respective base interest rate since March 22, 2013 as well as € 272.87 in pre-trial attorney’s fees.

The defendant is ordered to pay the plaintiff € 238.00 plus interest in the amount of 5 percentage points above the respective base interest rate since June 22, 2013.

The remainder of the action is dismissed.

The plaintiff shall bear 38% of the costs of the proceedings and the defendant 62%. The defendant shall bear the costs of his default alone.
(….)

Facts of the case

In the present action, the plaintiff is asserting claims for damages arising from a contract for work and services.

In 2012, the plaintiff asked the defendant for an offer to repair burglary damage to a window. The defendant prepared this offer on 08.05.2012. The offer ended with a gross amount of € 1,964.69. The defendant was to supply and install a plastic window in mahogany, Rehau system, 86 mm construction depth, insulated glazing with sound insulation, as well as dismantle and dispose of the old – damaged – window. On the basis of this offer, the plaintiff placed the order with the defendant.

The defendant accepted the order and carried out the work. On 06.08.2012, the defendant invoiced a total amount of € 2,017.05 for his work.

In a letter from a lawyer dated 15.01.2013, the plaintiff requested the defendant to rectify the work it had carried out by 13.02.2013 and to acknowledge by 30.01.2013 that the work it had delivered was defective. The defendant’s legal representative responded to this letter and rejected the claims in a letter dated 22.01.2013.

The plaintiff initially pursued his claim by way of an action for advance payment. In the meantime, he had the rectification work carried out and is claiming the following costs: € 2,356.54 based on the invoice from company K. dated 18/05/2014 and € 1,215.47 based on the invoice from company H. dated 14/07/2014. The plaintiff paid his property management company a total of € 175.00 for the time spent on the rectification work.

On April 11, 2013, the Bergisch Gladbach Local Court issued a default judgment in the written preliminary proceedings with the following operative part:

The defendant is ordered to pay the plaintiff EUR 2,356.54 plus interest at a rate of 5 percentage points above the prime rate since January 22, 2013, as well as EUR 272.87 in pre-trial legal fees.
Orders the defendant to pay the costs.
The judgment is provisionally enforceable.

The defendant lodged an objection to this default judgment in due form and time in a statement dated 24.04.2013.

The plaintiff denies that the witness N. accepted the defendant’s work. Moreover, the witness N. was not authorized to carry out such an acceptance.

The plaintiff claims that the original window could have been removed without damaging the masonry, the reveals and all the brick slips.

The plaintiff is of the opinion that the work performed by the defendant is defective. The windows were too high and wide. In addition, the moldings were inadequately plastered. Finally, water could penetrate the existing insulation from the outside by cutting off the window sills. The plaintiff is of the opinion that the costs of the rectification are customary, necessary and reasonable. In addition, he is entitled to a claim against the defendant for payment of € 175.00 for the time spent by his property management company.

The plaintiff has increased his claim twice and most recently filed a motion,

uphold the default judgment of 11.04.2013;
order the defendant to pay him a further € 1,390.47 plus interest at a rate of 5 percentage points above the prime rate on a partial amount of € 1,180.09 from the pendency of the extension of the action of 5 June 2013 and on the remaining amount from the pendency of this application.

The defendant claims,

set aside the default judgment of 11.04.2013 and dismiss the action in its entirety.

The defendant claims that the witness N. accepted the work after completion. The defendant denies that the windows were too high and too wide. The plaster used by him had been applied correctly and professionally.

The court took evidence on the execution and acceptance of the window system by hearing the witness N. and, on the basis of the order to take evidence of 12.07.2013, by obtaining a written expert opinion together with an oral explanation of the expert opinion by the expert Dipl.-Ing. A. With regard to the result of the taking of evidence, reference is made to the minutes of the meeting of 28.06.2013, the written expert opinion of Dipl.-Ing. A. of 28.02.2014, the table presentation prepared by the expert of 22.08.2014 and the minutes of the meeting of 29.08.2014.

In an unadmitted written submission dated 02.09.2014, the plaintiff requested that the oral hearing be reopened and further argued why the deductions made by the expert from the invoices of the company K. dated 18.05.2014 and the company H. dated 14.07.2014 were not justified.

In a further unadmitted written submission dated 10/09/2014, the plaintiff commented further on the outcome of the hearing and the taking of evidence.

Reference is made to the mutual written submissions and annexes for further details of the facts and the dispute.

Reasons for the decision

(acceptance; warranty)

The complaint is largely well-founded.

The plaintiff has a claim against the defendant for payment of € 2,338.35 in accordance with §§ 631, 634 No.2, 637 Para. 1 BGB.

The witness N. accepted the defendant’s work, which is why the rights relating to defects under the contract for work and services are applicable in this case. Acceptance is defined as physical acceptance in the context of the transfer of possession, combined with the recognition of the work as being in conformity with the contract in the main. In the event that – as in the present case – physical receipt is excluded due to the nature of the work, acceptance only consists of recognition after completion of the work, i.e. after all essential contractually owed services have been rendered (cf. on the whole: Sprau in: Palandt, BGB, 73rd edition 2014, Section 640 marginal no. 3).

In her testimony, the witness N. credibly stated that after the defendant had completed his work, she told him that it looked good. This is the recognition of the work performed by the defendant as essentially in accordance with the contract. In the opinion of the court, the defendant was also sufficiently authorized within the meaning of § 164 para. 1 BGB to declare acceptance on behalf of the plaintiff. The witness Nagler stated that the plaintiff had asked her to be present during the installation of the window as he had had to go abroad at short notice. If she had not been able to be present when the windows were installed, the plaintiff would have had to commission the janitor service.

In this, the court sees an at least implied authorization of the witness N. by the plaintiff. In addition – as the plaintiff acknowledges on p. 2 of his statement of 15.05.2013 – in the case of simple works, the receipt of the work by the customer already constitutes acceptance. Finally, the unconditional payment of the remuneration regularly constitutes acceptance (BeckOK BGB/Voit BGB § 640 marginal no. 7). The plaintiff also stated on p. 2 of his statement of 15.03.2013 that he would now “assert the corresponding warranty rights”.

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The work performed by the defendant is defective within the meaning of Section 633 II 2 No. 2 BGB. On pages 7 and 8 of the expert opinion dated 28.02.2014, the expert Dipl.-Ing. A. convincingly explains that the windows installed by the defendant are too high and wide. On page 9, the expert convincingly explains that the plastering was carried out inadequately by the defendant and that water could penetrate the existing insulation from the outside by cutting off the window sill made of clinker brick. The court fully agrees with the detailed and very convincing explanations of the expert.

In his table presentation of 22.08.2014, the expert convincingly explained that the delivery and installation of a new, suitable window element was necessary and would require costs of approx. 1,700.00 € net, which corresponds to 2,023.00 € gross. During his personal hearing on 29.08.2014, the expert convincingly stated that the invoice from company K. dated 18.05.2014 in the amount of € 2,356.54 was not fully reimbursable due to the differences to the previous installation.

The differences are as follows: Instead of cathedral yellow, chinchilla white was used. Instead of a country house glazing bar, only a glazing bar was installed in the insulating glass. In his personal hearing, the expert also added that the table presentation of 22.08.2014 had assumed that, in contrast to the previous installation, internal and external foiling had been present when calculating the costs. However, Figure 4 of the expert opinion shows that the originally installed window had film on both sides. For this reason, there was an additional surcharge of approx. 50.00 – 80.00 €.

The court adopts the expert’s convincing statements in full. With regard to the surcharge of € 50.00 – € 80.00, the court applies the mean value of € 65.00 net, i.e. € 77.35 gross, in accordance with § 287 ZPO.

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With regard to the invoice from the company H. dated 14.07.2014, the expert convincingly explains on page 5 of the table presentation dated 22.08.2014 which invoice items he considers to be generally deductible. The expert convincingly confirmed the relevant statements in the table presentation during his personal hearing. On p. 10 of the expert opinion of 28.02.2014 and additionally on page 3 f. of the table presentation of 22.08.2014, the expert convincingly states that the work on the clinker brick slips was only necessary on the clinker brick slips located on the vertical surface and not on the horizontal slightly inclined surfaces (window sill), provided that the case is taken as a basis that the joint was narrower than 20 mm and therefore the clinker brick slips could not have been removed without damage. However, he could not make any findings in this regard and “alternative evidence outside the technical expert evidence” was required.

According to the expert’s explanations, the work to repair the vertical part of the clinker brick slips required approximately € 200.00 net, which corresponds to a gross amount of € 238.00. The fact that and why a helper was not required for the work to be carried out was explained by the expert in his table presentation and further in his personal hearing on 29.08.2014. The court agrees with these convincing explanations.

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The plaintiff is not entitled to any further evidence regarding the size of the joint. As the work was accepted, the plaintiff as the customer bears the burden of proof for the defect (BeckOK BGB/Voit BGB § 636 para. 41). The present non-liquet situation is therefore to his detriment.

Finally, on page 4 of the table presentation of 22/08/2014, the expert convincingly stated that it would not have been more cost-effective to accept damage to the interior window sill, as replacing the interior window sill could have led to damage to this window sill, which would have made further compensation work necessary. In the course of his personal hearing, the expert was also able to rule out an error in advice by the defendant in this regard.

The plaintiff is not entitled to compensation for the time spent by his property management company in the total amount of € 175.00. The injured party is not entitled to compensation for the time spent on processing the claim. There is no financial loss. In addition, the compensation of this effort is outside the protective purpose of the norm (entirely h.M, cf. already BGH, judgment of 09.03.1976 – VI ZR 98/75 -, cited in juris).

The claim for interest with regard to the amount of € 2,100.35 arises from §§ 291, 288 Para. 1, 187 Para. 1 analogously BGB. An earlier occurrence of default has not been demonstrated by the plaintiff. In particular, it is not sufficient that the defendant was in default of supplementary performance due to the lawyer’s letter dated 22.01.2013 because, unlike under previous law, the claim for supplementary performance no longer expires upon expiry of the deadline for supplementary performance, but only through withdrawal, reduction or the demand for damages instead of performance, Section 281 (4) BGB.

The defendant owes the legal fees in accordance with Sections 631, 634 No. 4, 280 Para. 1 BGB. With an object value of € 2,100.35 and a 1.3 business fee, this results in an amount of € 272.87.

The claim for interest with regard to the amount of € 238.00 arises from §§ 291, 288 Para. 1, 187 Para. 1 analogously BGB.

The statements made by the plaintiff in his written submission dated 2 September 2014 were made after the conclusion of the oral hearing and therefore do not need to be taken into account pursuant to Section 296a ZPO. The court did not consider it necessary to reopen the oral hearing in accordance with Section 156 ZPO. Moreover, the plaintiff’s objections to the expert’s calculations are not valid anyway. The expert must base his calculations on the items listed in the defendant’s offer dated May 8, 2012. The parties agreed on this and the defendant’s calculation was based on this. If the plaintiff believes that he wanted to order something other than what he actually did, this irrelevant error of motive is to his detriment.

The statements made by the plaintiff in his written submission dated 10/09/2014 were made after the conclusion of the oral hearing and therefore do not need to be taken into account pursuant to Section 296a ZPO. The court did not consider it necessary to reopen the oral hearing in accordance with Section 156 ZPO.

The procedural ancillary rulings are based on Sections 91, 92, 344, 708 No. 11, 709, 711 ZPO.

Value in dispute: € 3,747.01

(not legally binding)

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Acceptance and warranty