Germany Update: Beware of “flowery” service descriptions!

In contractual regulations between builders and consumers, there are more and more service descriptions that tie in with aspects whose importance is not always clear and obvious. This was also the case before the Higher Regional Court of Munich (decision of 27.03.2020 – 20 U 4425/19), in which the parties argued about the agreement of an “ecological optimization”.

Circumstance

A consumer commissioned an entrepreneur with the installation of a solar thermal system and a downstream water heater. This was intended to achieve an “optimisation of the heating system froman ecological point of view ” agreed between the parties.

In the opinion of the consumer, the use of the water heater does not lead to the agreed “ecological optimisation”. He demands an advance for remedying the defect and compensation for damages. The regional court, which had to decide on the case at first instance, confirmed a claim of the consumer. The entrepreneur appealed against this.

Decision

The Higher Regional Court dismissed the appeal. The entrepreneur must pay for the costs of remedying the defect and the claim for damages. The defectiveness in the present case does not depend on whether the work provided complies with the generally accepted rules of technology or the state of the art. In any event, the performance is defective here, since it does not in any event meet the quality agreement agreed by the parties – “optimisation of the heating system from an ecological point of view”.

The defendant’s construction does not make sense from an energy point of view and therefore does not correspond to an “ecological optimisation”. The use of a water heater that heats purely electrically leads to unfavorable energy efficiency and an increase in energy costs. Overall, the construction is sufficient to ensure sufficient service water supply and heating. However, this is associated with increased energy consumption.

The fact that the consumer had expressly consented to the installation of a water heater did not preclude this. The liability for success remains unaffected by the fact that the parties agree on a certain type of execution with which the owed quality of the work cannot be achieved.

Practical tip

The decision impressively shows the legal relationship between the recognized rules of technology and the agreement of a quality. A sole consideration of the recognized rules of technology is not decisive for the assessment of a defect. If a quality agreement is made, this quality must be provided, even if it deviates from the recognized rules of technology. The quality agreement shall take precedence. However, according to the settled case-law of the Federal Court of Justice, the entrepreneur is subject to comprehensive obligations to provide information and information to his contractual partner if the recognised rules of technology are to be deviated from “downwards”. In practice, however, the entrepreneur can hardly meet these obligations. As a result, such descriptions should be avoided in service descriptions (e.g. in the case of a property developer contract).

The article was first published in the ImmobilienReport Metropolregion Rhein-Neckar, issue 147.

By Philipp Junker, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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