BGHZ 46, 242
VII. Civil Senate
(VII ZR 144/64) VOB/B
08 December 1966
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Professor B.S. Markesinis

S., a building contractor, has constructed a factory building for the defendant. Out of his remaining claim for labour amounting to DM 67,377.51 S. has assigned an amount of DM 40,296 to the claimant, who has brought an action for that amount. The defendant refused payment because the building shows defects.

The Landgericht has rejected the claim. The Oberlandesgericht has rejected the claimant's appeal. By this further appeal (Revision) the claimant pursues his main claim, although now only for the amount of DM 38, 896 plus interest, having acknowledged a reduction of DM 1,400. The further appeal resulted in a quashing of the previous judgment and referral back to the lower court.


(I. .....)

II. The appeal court holds that under the legal aspect of positive breach of contract the defendant can demand reimbursement of the sum of DM 7,932 which he has paid to company A for repair work. The defendant did not need to entrust S. with this work since he justifiably claimed to have lost confidence in his work.

The appeal court's view is to be upheld that there is no need for a fixed-term demand as set out in para. 13 No.5 (2) VOB (B) (General Conditions for Building Contracts) where the principal has a special interest in having the repair work performed by a third contractor. Although para. 13 No.5 (2) VOB (B) does not contain a provision corresponding to that of para. 634 (2) BGB, an application of the legal principle underlying this provision is however, under the principle of good faith (para. 242 BGB), required where the contractor has shown himself so unreliable in the performance of his building works that the principal need no longer trust him with a proper execution of repair work which has become necessary (see Ingenstau/Korbion, VOB, 4. ed., p. 13 margin number 82).

1. However, the decision appealed against does not contain any reason why the defendant need no longer have any such trust. This has been rightly brought up by the further appeal. The defendant has not alleged that S. fraudulently or negligently used substandard concrete. H has merely argued that S. has appointed a certain B. to act as building supervisor who, as established by penal proceedings, was not a graduate engineer and lacked the necessary professional training. Under these circumstances S. himself was deceived by B. This fact alone does not constitute unreliability on the part of S.

2. Where the principal himself had the defects removed, without having demanded that the contractor do this within a specified time limit and where the prerequisites are missing allowing him to refrain from such fixed-term demand, he will not be entitled to demand from the contractor reimbursement for the costs of repair under the legal aspect of unjust enrichment (BGH VII ZR 124/63 of 11 October 1965 = NJW [1966] 39 abandoning previous arguments in BGH VII ZR 197/59 of 28 February 1961 = BB [1961] 430). As a result the claimant need not agree to have expenditures saved taken into account, where the claim for reimbursement of the amount of DM 7,932 paid to company A. fails.

3. The defendant has not submitted any arguments for a claim of reimbursement of the costs incurred for removal of the defects under the legal aspect of management without mandate (paras 677, 683 BGB).