Austria: Overview of the warning obligation in construction law

 

The starting point is sentence 2 of Section 1168a ABGB, which reads as follows: "But if the work fails due to obvious unsuitability of the material provided by the customer or obviously incorrect instructions from the customer, the entrepreneur is responsible for the damage if he cannot inform the customer warned."

The material provided is, for example, the building site or an object to be renovated or preliminary work by other trades. Binding specifications in the tender, in particular in a description of services, are to be seen as instructions. It should be noted, however, that not every specification of the client is binding. A purely declarative description of services should be considered here, for example, if this has no meaning for the client because the functionality is what matters to him. The contractor is only obliged to issue a warning if there is a binding specification, the implementation of which does not lead to the usability of the work. This binding specification is ultimately the owed success.If, on the other hand, there is a non-binding specification, there is no need to warn.

It should also be remembered that the contractor generally only loses his right to payment if the work is completely unusable. If the work is not entirely unsuccessful, there is a corresponding claim to wages for the usable part.

It is disputed whether warranty claims or claims for damages are entitled to a work that is not entirely unsuccessful. The fact that the (incorrect) instruction was implemented in full speaks against the warranty claims. It is therefore largely assumed that the violation of the warning obligation triggers claims for damages. As always, this assessment is essential, since in the event of a claim for damages, there must be fault and a deduction "new for old" usually has to be taken into account in accordance with the pro rata service life that has already expired.

A key question in connection with the duty to warn is the regular objection that the customer is partly to blame. In teaching, it is argued that, on the one hand, the duty to warn is intended to protect the careless client and that even the knowledgeable client is not subject to an obligation to check, so that there is no room for contributory negligence. On the other hand, it is countered that the client identifies himself as an expert by specifying a binding manufacturing method or a specific material, etc. He should therefore not be allowed to refer to the lack of the skills and knowledge necessary for the instruction. The Supreme Court (OGH) made the decision 4 Ob 137/11ta U-turn.Remarkably, in this decision, the OGH based it on whether the client indicated in the contract that he was interested in the professional criticism of the contractor. In earlier case law, the damage resulting from incorrect instructions and a breach of the duty to warn was divided. If one now follows the more recent case law, the contractor is solely liable as a result of the breach of the duty to warn. This is strongly criticized in teaching, as it contradicts §1304a ABGB, according to which everyone has to bear the consequences of their own negligence themselves.

Overall, however, it should be noted that with the tightening of the warning obligation through case law and teaching, contributory negligence on the part of the client will only exist in rare cases. The question of how exactly he has to check and at what point in time is therefore all the more important for the contractor. According to the prevailing opinion, the contractor is already obliged to warn at the pre-contractual stage. However, it should be noted that the test standard differs before and after the conclusion of the contract. The contractor only has to check superficially before concluding the contract and does not have to go into depth. This is justified by the great time pressure that usually exists,the fact that it is not yet clear whether the order will be received at all or whether there is a lower probability of this and the information and knowledge advantage of the client at this point in time. In addition, there is the argument of the high costs of a detailed examination and ultimately the contractor is also allowed

In principle, it would be desirable if the case law had not shifted the responsibility almost entirely to the contractor, but instead had taken into account the reality of construction, namely that in numerous work contracts the contractor was given detailed instructions on how to proceed. 

Anyone who specifically and bindingly prescribes materials and working methods should also (proportionately) be responsible for them. On the other hand, the new case law now coincides with the contractual provisions, which mostly originate from the client's side, which provide for a comprehensive exculpation of the client and a stricter warning obligation on the part of the contractor (mostly also for the pre contract area). In this area, too, it should be pointed out that a more balanced relationship of responsibility can of course be established through contractual agreements, for example in accordance with earlier case law.

 

 

For further information, please contact:

 Konstantin Fischer , Lawyer

Zumtobel + Kronberger + Rechtsanwälte OG, Salzburg

Email: fischer@eulaw.at

 t: +43 662 624500

 

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