At the time of acceptance, the Contractor must provide the Client with a service free of material defects. If there is nevertheless a defect, the client must set the contractor a deadline in writing to rectify the defect.
§ 13 Abs. 5 VOB/B S. 1 u. 2 states:
„1The Contractor shall be obliged to rectify at its own expense all defects that become apparent during the limitation period that are attributable to performance contrary to the contract if the Client requests this in writing before the expiry of the period. 2The claim to rectification of the notified defects shall expire 2 years after receipt of the written request, but not before expiry of the standard periods in accordance with paragraph 4 or the period agreed in their place."
The Higher Regional Court of Frankfurt (judgment of 21.12.2023 - 15 U 211/21) has now ruled that a WhatsApp message lacks the required written form within the meaning of Section 13 (5) no. 1 sentence 2 VOB/B and justifies this as follows
"Section 127 (2) BGB does permit the transmission of a declaration that must be made in writing as part of a legal transaction, including by means of telecommunications. However, this refers to a declaration that is drafted in the same way as a written document and is transmitted to the recipient of the declaration in a manner that replaces the delivery of the written document. It must be clear from the declaration by whom the declaration was made.
In addition, the recipient of the declaration must be able to print out this document and save or archive it permanently (Grüneberg/Ellenberger, BGB, 82nd ed. 2023, Section 127 marginal number 2).
Transmission via messenger service does not meet these requirements. In particular, there is no sufficiently secure (possibly only electronic) option for permanent archiving and printing. This is because such messages are typically only sent via smartphones without any guarantee of permanent storage. Added to this is the fact that even the mere addition of a name does not provide a sufficiently reliable guarantee as to which person is legally responsible for the declaration contained therein, if it is intended to be a legal or otherwise binding declaration that goes beyond the exchange of purely private messages.
In addition, there is no possibility of permanent archiving, as such messages can also be deleted by the sender at the recipient's end.
Finally, unlike an email, the sender of the declaration is not readily identifiable from a mere WhatsApp message because the identification/registration is made solely with a telephone number that does not refer to a specific sender.
It must also be taken into account that a formal requirement is also intended to warn the person making the declaration and protect them from making it too hastily. However, a messenger service is predominantly only used for the quick exchange of purely private messages and not for making legal declarations. In the latter case, the focus is not on the emotional nature of private messages, but on considered action with corresponding legal consequences. A messenger service and its use is therefore unsuitable for maintaining such a function of the formal requirement, because the typical manner of use in particular is contrary to this."
- OLG Frankfurt, Urteil vom 21.12.2023 - 15 U 211/21
We therefore recommend avoiding requests to rectify defects via WhatsApp in VOB/B contracts and instead reverting to the good old email. This is because the written form required under Section 13 (5) no. 1 sentence 1 VOB/B is ensured by an email (see OLG Cologne judgment of 22.6.2016 - 16 U 145/ 15).
Dusseldorf, February 22, 2024
Author: Lawyer Dennis Wiegard
