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 |  Dennis Wiegard

Work was built according to the acknowledged rules of technology - nevertheless it is defective!

Decision of the Building Chamber of the Munich Higher Regional Court of March 27, 2020 - File No. 20 U 4425/19 Bau -

In its decision of March 27, 2020 (20 U 4425/19), the Munich Higher Regional Court ruled that it is not sufficient for contractors to limit themselves solely to the generally accepted rules of technology and compliance with them during construction. This applies at least if, in addition, a quality agreement has been made. If the work produced - despite compliance with the recognized rules of technology - does not meet the requirements resulting from the agreed quality, the work as a whole is defective.

The case was based on the following facts:

The plaintiff (homeowner) commissioned the defendant (craft company) to install a solar thermal system on his property. The express wish of the plaintiff - and ultimately also the subject of the quality agreement - was that the solar thermal system offered by the defendant should serve to optimize the already existing heating system from an ecological point of view. The existing system was therefore to be "ecologically optimized". The defendant craft company then explained to the plaintiff that it had achieved good ecological results with the use of instantaneous water heaters. The plaintiff then agreed to the installation of an instantaneous water heater.

After construction of the plant, the plaintiff complained that the plant was defective. It did not comply with the agreed "ecological optimization". The defendant (craftsman contractor) replied that the system was installed at the request of and in consultation with the plaintiff.

The plaintiff then took legal action against the defendant for payment of an advance for remedying defects in the solar thermal system, as well as claims for damages. The Munich Higher Regional Court upheld the plaintiff's claim. It was undisputed that the parties had agreed to optimize the heating system according to ecological aspects (quality agreement). The defendant's work does not meet this quality agreement. A court-appointed expert stated that for the chosen design of the defendant, the domestic water must be heated at least temporarily with electricity. However, the plaintiff's wish was that a heating system be installed according to ecological aspects. The parties also ultimately agreed on these specifications. The construction chosen by the defendant does not meet these requirements.

„Because the design chosen by the defendant, which provides for a downstream electric instantaneous water heater, is, according to the expert's explanations, energetically not reasonable, since the heat treatment of the domestic hot water could be better implemented via the heat pump; e.g., from EUR 0.25 per KWh electricity costs 3-5 x more KWh heat for domestic hot water and heating power could be generated (cf. statement of May 24, 2018, p. 1, sheet 319 of the file). Furthermore, according to the expert's explanations, the design chosen by the defendant with a downstream instantaneous water heater builds up additional electrical output of well over EUR 10,000.00 fixed costs calculated over 20 years (cf. statement as before, p. 2, reverse side of sheet 320 of the file)."

The work performance of the defendant was therefore defective. In the opinion of the expert, it would have made more ecological sense for the heat treatment of the domestic water to be implemented via the existing heat pump. In the opinion of the OLG Munich, it is therefore also irrelevant that the parties had agreed on the installation of an instantaneous water heater and that the contractor had complied with the generally accepted rules of technology in this respect. This is because the parties had additionally concluded a quality agreement according to which the heating system was to be optimized from an ecological point of view.

In summary, it is not sufficient for contractors to erect works in accordance with the generally recognized rules of technology. Rather, all contractual agreements and the resulting requirements must be observed for the contractually agreed performance target.

The decision of the Munich Higher Regional Court of March 27, 2020 (Case No. 20 U 4425/19 Bau) is now final. The defendant's appeal against denial of leave to appeal was dismissed by the Federal Court of Justice in its ruling of March 10, 2021 (Case No. VII ZR 58/20).

Please do not hesitate to contact us if you have any questions.

Author:

Attorney at Law Dennis Wiegard

Düsseldorf, September 2021, 9th

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