Right of lien and right of retention under a contract for work and services pursuant to Sections 647, 1253 BGB; Section 273 BGB and claim for damages pursuant to Sections 631, 280 (1) BGB
Judgment of the Local Court of Cologne dated 16.08.12 – Ref. 147 C 292/11 confirmed by judgment of the Regional Court dated July 11, 21013 – Ref. 6 S 285/12
- No contractor’s lien pursuant to §§ 647, 1253 BGB and no right of retention pursuant to § 273 BGB on double doors in the case of outstanding claims for payment for work if the contractor collects double doors from the client’s home without authorization after having refurbished them in his workshop in accordance with the order and reinstalled them in the client’s home.
- §§ Sections 631, 280 (1) BGB – Compensation for damages of the client against the craftsman in the event of refusal to return the hinged doors due to breach of a secondary obligation of the contractor, Section 241 (2) BGB
Reasons for the decision:
(Damages)
The plaintiff has a claim against the defendant in the amount of the tenor of the claim pursuant to Sections 631, 280 (1) BGB.
A contract for work and services within the meaning of Section 631 BGB was concluded between the plaintiff and the defendant. Under this contract, the defendant is obliged to take into account the legal interests of the plaintiff and, in particular, not to breach any secondary obligations within the meaning of Section 241 (2) BGB. The defendant did not sufficiently fulfill this obligation. Rather, he committed a breach of duty within the meaning of Section 280 (1) BGB by not returning the doors in dispute after removing them from the plaintiff’s apartment despite being requested to do so. In particular, the defendant did not return the doors even after it had been established that there were no defects. As a result, the plaintiff suffered damages in the amount of the rent reduction. The defendant must compensate the plaintiff for this damage in accordance with Section 280 (1) BGB. This is because all damages, including loss of profit, are compensated under Section 280 (1) BGB (Grüneberg, in Palandt, Section 280 para. 18). The fault of the defendant is presumed in accordance with Section 280 (1) sentence 2 BGB. The defendant has not succeeded in rebutting this presumption.
Even after taking evidence, the court is convinced that the plaintiff breached an obligation under the contract for work and services by collecting the doors in question from the plaintiff’s apartment and subsequently failing to return them despite being requested to do so. A breach of duty is also not excluded due to a right of possession or right of retention, which the defendant could invoke. Rather, he was obliged to surrender the goods to the plaintiff in accordance with § 985 BGB. The defendant had no right to possession within the meaning of § 986 sentence 1 BGB. In particular, the defendant was not entitled to a contractor’s lien on the doors pursuant to § 647 BGB. The court is not convinced that there were no outstanding claims from the contract for work and services with the plaintiff. In particular, the defendant has submitted invoices and account statements which show that an amount of € 925.22 is still outstanding in relation to the invoices of March 25, 2010 (Annex 1) and an amount of € 666.40 is still outstanding in relation to the invoice of May 26, 2010 (Annex 3). The court is also unable to rule out the possibility that the outstanding wages relate to the doors in dispute. This is because the plaintiff did pay a partial amount on the invoice dated 26.05.2010 (Annex 3). However, it expressly paid this for the skirting boards that were later disputed and therefore not for the doors.
However, the defendant is not entitled to a contractor’s lien on the doors because this lien expires when the item is returned in accordance with Section 1253 BGB. It also does not revive if the contractor comes into possession of the item again due to a further repair order (Sprau in Palandt, § 647 para. 5 with reference to BGH 87, 247). Since the defendant had carried out the contract work on the doors and had returned the item to the plaintiff’s apartment for this purpose, a landlord’s lien cannot be considered. This is because such a lien would not exist even if the contractor had been awarded a further repair contract and had therefore come into possession of the item. This means that even if the defendant’s wife had actually been instructed by telephone to repair the doors, there would no longer be a contractor’s lien on the doors.
Nor could the defendant refuse to hand over the doors due to a right of retention pursuant to Section 273 BGB. Pursuant to § 273 BGB, the debtor may, if he has a due claim against the creditor from the same legal relationship on which his obligation is based, refuse the performance owed until the performance due to him is effected. In the present case, the performance owed by the defendant initially consisted of the provision of the agreed work performance, i.e. the renovation measures for the new production and processing of various doors for the plaintiff’s apartment. Even if one were to assume that the defendant was then instructed by Ms. L. (plaintiff’s side) by telephone on 6 July 2010 to rectify his work on the doors in dispute and has a due claim against the plaintiff for payment of the full remuneration for the work, the defendant could at best have refused to rectify the doors on this basis, but not to hand them over. In addition, the removed doors did not actually have any defects that the defendant could have refused to rectify. A right of retention pursuant to Section 273 BGB is therefore ruled out.
As a result, the defendant is therefore obliged pursuant to Sections 631, 280 (1) sentence 1 BGB to compensate the plaintiff for the damage incurred in the amount of the tenor of the claim. According to the above, the defendant, who could not detect any defects in the doors himself, would have been obliged to hand them over. This applies all the more in light of the fact that the defendant had already been ordered to surrender the doors in the partial default judgment of the Cologne Local Court dated January 31, 2011, file no. 128 C 243/10, which was upheld following an appeal in the final judgment of April 14, 2011. However, the amount of damages to be compensated in accordance with §§ 280 Para. 1, 631 BGB is limited to the tenor amount of € 2,850.00. It is true that the plaintiff’s tenant, the witness H. (tenant of the apartment in question), informed the plaintiff in a letter dated October 4, 2010 that he would reduce the rent due to the missing doors, namely retroactively for the months of July to September 2010 by € 100.00 each and since October 2010 by € 150.00 each. Accordingly, the rent reduction of € 150.00 per month for the period from October 2010 to April 2012 constitutes recoverable damages. The defendant’s unadmitted statement of 13.08.2012, received by the court on 14.08.2012, did not give rise to the reopening of the hearing in this respect.
This means that the question of whether the plaintiff is entitled to a claim for damages under the provisions on the owner-occupier relationship in addition to this overriding contractual claim is no longer relevant. In this regard, the plaintiff had claimed that the defendant had obtained the doors through unlawful interference. Damage caused by withholding due to delayed surrender would have to be compensated according to § 990 para. 2, 992 BGB – not according to §§ 889, 990 para. 1 BGB, according to which only the damage caused by the fact that the item cannot be surrendered to the owner by the unauthorized possessor is to be compensated (Bassenge, in Palandt, § 989 para. 6). Liability in accordance with §§ 990 Para. 2, 992 BGB would, however, fail because it is not clear whether the defendant obtained the doors through unlawful interference within the meaning of § 858 BGB. For this, the plaintiff would have to prove that the owner was deprived of possession without his will and that this was done unlawfully. After questioning witness B., however, the court is not convinced that Mrs. L. (plaintiff) did not possibly instruct the defendant or his wife, witness B., to repair the doors and, in this context, to remove the doors. In any case, the plaintiff has not succeeded in meeting its burden of proof in this regard for the existence of unlawful interference.
The claim in the amount of the lawyer’s fee of € 272.87 arises from the aspect of default, Section 286 BGB. The plaintiff’s attorney requested payment from the defendant in a letter dated 11.11.2011. The defendant had already been requested to pay by the plaintiff beforehand, so that the defendant was already in default at this time. The legal fees are therefore to be reimbursed as damages caused by default in accordance with Section 286 BGB.
The defendant appealed. The 6th Civil Chamber of the Regional Court of Cologne dismissed the appeal with the exception of part of the interest claimed.
Reasons:
(abbreviated in accordance with Sections 540 (2), 313a ZPO, 26 No. 8 EGZPO)
The defendant’s admissible appeal is unsuccessful except for the award of interest in the judgment of the local court. The local court awarded the plaintiff interest from rent reduction amounts for July to September 2010, although it denied a claim for damages in this respect and dismissed the action for the principal claim. This was to be corrected.
The further appeal is unsuccessful.
The defendant was obliged to surrender the doors in question for the bedroom and kitchen and was in contract with the surrender, so that he is liable to the plaintiff for damages due to default in accordance with §§ 286, 280 BGB.
The fact that the defendant was obliged to surrender the property and that he was not entitled to a right of retention in this respect is also binding for this conduct due to the final judgment on the action for surrender (128 C 243/10 AG Köln). The final judgment to surrender has a binding effect for the subsequent proceedings in that the judgment on surrender is binding for the time of the last oral hearing and establishes that there was no legal or contractual right to refuse surrender. The period between the date of the legal handover and the date of the last oral hearing also has an educational effect if no relevant changes have occurred and are asserted during this period (BGH, judgment of July 26, 2005, X ZR 109/03). The latter was the case here, so that for the period from December 28, 2010 (service of the action for restitution) to April 22, 2012 (withdrawal of the appeal) it is bindingly established that the defendant was obliged to restitute and that he was not entitled to a right of retention. The period October 2010 to 27.10.2010 and 23.4.2012 to 30.4.2012 is therefore still open.
However, even for this period, the defendant cannot invoke a right to refuse to hand over the doors. The Local Court rightly assumed that the defendant was not entitled to a contractor’s lien. Reference is made to the relevant statements.
The defendant also cannot successfully claim that he had a right of retention with regard to outstanding claims for payment for work and that he had a right to possession in this respect. In this respect, the defendant claims to still be able to claim approx. 1500 € wages. In the opinion of the Chamber, the defendant cannot base a right of retention on this because, according to his own account, he came into possession of the two doors as a result of the fact that defects were allegedly reported, although it is undisputed that neither door has any defects. In this respect, the collection of these doors can only be based on a misunderstanding, even according to the defendant’s submission, because the plaintiff’s shareholder had no reason to cause the defendant to collect two defect-free doors, whereby defects were actually reported on a toilet door and on skirting boards, as can be seen from the correspondence submitted. However, if the two defect-free doors, on which it is also undisputed that no measures were to be carried out, were only collected as a result of a misunderstanding, it is contrary to good faith for the defendant to exploit this misunderstanding in order to emphasize his disputed claim for payment for work and to invoke a right of retention. Moreover, it is also incomprehensible why the defendant was still in possession of the keys, since, according to his admission, his work was completed without defects at the beginning of July 2010, so that there was no reason to keep the key, even if it had been given to him to carry out the work, as he claims.
As the defendant was therefore obliged to hand over the doors, he was in default with the request to hand them over after setting a deadline and must compensate for the damage caused by the delay. His fault is presumed. A possible legal error does not excuse him in principle.
The plaintiff’s claim is also justified in terms of amount. By submitting the letter from the tenant, the rental agreement and the receipts of payment, the plaintiff has proven that the tenant has reduced the rent due to the missing door. In this respect, the plaintiff cannot be accused of having accepted the reduction without obligation. The lack of doors to the bedroom and kitchen constitutes a tangible impairment of the use of the rented property and therefore justifies a rent reduction in accordance with Section 536 BGB. With a gross rent of € 1620, the reduction of € 150 amounted to nine %. It must be taken into account that the lack of doors to the bedroom and kitchen and thus the possibility of keeping out kitchen smells or separating the sleeping area, for example, is particularly detrimental. Furthermore, this was a relatively high-priced apartment where a tenant can absolutely expect doors to the bedroom and kitchen to be available. In addition, it was also unreasonable for the plaintiff to enter into a dispute with the tenant over the amount of the rent reduction – which the Chamber considered to be entirely justifiable – and thereby burden the tenancy, which had only just begun. On the other hand, the defendant was aware that the plaintiff had suffered damage due to rivet reduction. He therefore had all the more reason to reconsider his behavior and not to continue to insist on his avoidable right of retention.
Insofar as the defendant declared for the first time in the appeal instance that it would alternatively offset claims for compensation for work, this was not permitted in accordance with Section 533 ZPO. The plaintiff did not agree to the first offsetting in the appeal instance, nor does the Chamber have to take this as a basis in any case in accordance with Section 529 ZPO. In its response to the appeal, the plaintiff expressly clarified that it was disputed whether the defendant could still demand payment for the doors in question and again referred to the fact that it had complained about defects in the toilet door and skirting boards. Contrary to the defendant’s view, the court of first instance also did not find that the claim for compensation for work still existed in a specific amount, but merely stated that it was not clear to the court’s satisfaction whether there were any outstanding claims and that it could not rule out that this related to the doors in dispute. This in no way positively establishes that this was the case. Thus, the finding of the local court regarding a specific claim for wages cannot be taken as a basis in accordance with Section 533 (2) ZPO. Moreover, the question of an outstanding claim did not play a decisive role in the first instance and was only raised as a possibility by the local court. There is no relevance for the decision from the grounds for the decision. Therefore, the plaintiff would have already asserted in the first instance that the defendant’s services with regard to the toilet door and the skirting boards were defective, so that it would now also have to be clarified whether and which rights the plaintiff is entitled to in terms of reason and amount and which payments have been made on which claim.
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