BGH NJW 1990, 726 VI. Civil Senate = JZ 1990, 1087
13 February 1990
Professor B.S. Markesinis
J. Shaw


The plaintiff is a firm trading under the name of Margot H, its owner. Mrs H and her husband were joint owners of a detached house which was built by the defendant in 1977/78. From 1980 onwards, the plaintiff firm was running a kitchen furniture studio from the basement rooms of the house which it rented from the owners. In the time that followed there were repeated leakages of water into these rooms. On July 26, 1982 water again leaked into the basement of the house and damaged the show furniture and associated display items. The plaintiff calculated the loss which it had incurred at DM 53,385. It claimed compensation from the defendants in this amount, arguing that the defendant had defectively constructed the basement floor and basement walls which had caused the leakages. Both the Landgericht and the Oberlandesgericht rejected the claim. The plaintiff appealed to the BGH which quashed the judgment of the Court of Appeal and referred the case back to the lower court.

For the following


I. The OLG rejected both the contractual and the tortious claims brought by the plaintiff.

It held that the plaintiff was not a party to the oral building contract concluded with the husband alone. As a commercial tenant, she was also not covered by the protective scope of this contract; for the defendant could not have foreseen that the basement rooms of a detached house which were intended to be used for leisure purposes (e.g. fitness training, hobbies or parties) would be used for the display of furniture. The OLG argued that the plaintiff had no claim in tort because, after the earlier numerous leakages of water, she had acted at her own risk when she once again displayed furniture in the basement and should have foreseen further danger of water damage. Her careless conduct amounted to such a degree of contributory negligence that the defendant was wholly exonerated from responsibility.

II. The appeal decision cannot be upheld on all counts.

1. The OLG is correct to reject the contractual claims for damages brought by the plaintiff.

(a) It is not contested that when the husband concluded the building contract with the defendant, he did not say expressly that he was acting as the plaintiff’s representative. As the OLG found, it could not be implied from the circumstances (§ 164 I 2 BGB) that the contract was also intended to be concluded in the name of the plaintiff. The plaintiff’s appeal did not contest this evaluation of the facts as flawed in law; rather it sought merely to contrast its own evaluation which is basically irrelevant from the perspective of this court’s task as an appellate body. Contrary to the view put forward by the appellants, it was not sufficient for there to be a contract concluded in the name of the plaintiff that she was the joint owner of the land on which the house was built [references omitted], especially since it is not contested that at the time of the conclusion of the building contract the defendant did not know this fact.

(b) There are, further, no grounds in law for challenging the view of the OLG that there were no protective effects to be derived from the building contract (concluded between the husband of the plaintiff and the defendant) in favour of the plaintiff, giving her autonomous contractual claims against the defendant in respect of the damage caused to the furniture and display items brought into the basement rooms.

(aa) It may be left open for the purposes of this decision whether in the case of a building contract concluded in respect of the construction of a dwelling house, the relatives of the [builder’s] client as well as any joint owners of the land to be built upon will always fall within the protective scope of the contract [references omitted]. For such protection can only be of significance in respect of the infliction of loss which results from the fact that the persons in question come into contact with the work of the building contractor precisely in their capacity as family members or joint owners. This was not the case here. The plaintiff suffered the damage to the furniture and display items in the basement for which she seeks compensation neither in her capacity as a joint owner of the house, nor in her position as the wife of the client, but as the commercial tenant of the basement.

(bb) In its judgment of 28 October 1986 (NJW 1987, 1013) [other references omitted] this Division left open the question of whether the tenant is covered by the protective scope of a contract concluded between the client and an architect for the construction of a building [references omitted]. This question should be answered in the negative in respect of a contract with a building contractor such as the one in question here. First, there is no need for such a person to be covered, because in these circumstances the tenant will normally enjoy sufficient protection through his contractual claims against the landlord [references omitted]. Second, any other conclusion would mean that the contractual obligations of the building contractor would be unreasonably extended to cover risks which were not foreseeable for the contractor, without there being the possibility of the obligations being subject to clear delimitation on the basis of standards capable of being measured objectively [references omitted].

(cc) Since in the instant case the contractual claims would fail because there was insufficient proximity between the legal interests of the plaintiff which were impaired by the leakage of water and the contractual obligations of the defendant, it is no longer decisive in this context for the court to determine whether a commercial usage of the basement rooms by the plaintiff constituted a breach of the building regulations.

2. The conclusion of the OLG that the plaintiff has no claim in tort does not withstand legal scrutiny. The BGH must assume that the defendant was negligent in constructing the basement floor and the basement walls defectively, since the OLG left this matter open, and it must also assume that this breach of duty was the cause of the leakage of water on 26 July 1982 which resulted in a flood of water several centimetres deep in the basement.

(a) The OLG correctly assumes, on the basis of the judgment of this Chamber of 28 October 1986 (NJW 1987, 1013) [other references omitted], that the defendant is in principle subject to a tortious duty of care in respect of the items of property brought into the basement by the plaintiff.

(aa) In that case this Chamber held that an architect of a house was in principle liable in tort to the tenant in circumstances where, as a result of the defective performance of his duties in respect of the house, he did not offer the type of protection which is to be expected against bad weather. As a result of damp caused by rain, damage was caused to the tenant’s property. The position in law of the building contractor must be just the same. His duty of care is likewise not restricted to those risks arising directly from the house and endangering those who use the house and their property. For the building should, in normal circumstances at least, provide protection against threatening external dangers and the users of the house bring their property into the building precisely in reliance upon such protection. There may be an exception in cases of special circumstances involving, for example, the use of the cheapest method of construction (see the judgment of 28 October 1986). However, there were no factual circumstances in the present case requiring the application of this exception. On the contrary, in the application made by the plaintiff to this court, the building was described as ‘one of the most generously proportioned and most luxurious properties’ in the area.

(bb) In these circumstances, in matters of liability one must basically apply the same principles related to the performance of the duties owed by both the architect and the building contractor under their respective contracts for work and services as those which apply to the manufacture and dissemination of products which are intended to eliminate certain dangers but which are unsuitable for this purpose [references omitted]. For just as in the case of such products, where the purchaser takes no other precautionary measures in respect of his interests in reliance upon the protective effects of the product he has bought, so the owner or tenant of a building will regard his property as adequately protected from the effects of bad weather if they have been brought indoors, and he would not think of taking additional measures. Of course, it is the case that it is only the law of contract which protects the interest of use or financial interest of the plaintiff (‘Nutzungs- oder Äquivalenzinteresse’); a mere interference in this interest will not give rise to a claim in tort [references omitted]. If, however, the construction of a house is also intended to eliminate dangers threatening those interests of the plaintiff which are given absolute protection, then any impairment of these interests attributable to the defective performance of a duty will amount to an interference in the integrity of the plaintiff’s property (‘restitutio in integrum’), and will be actionable under § 823 I BGB.

(cc) There is no need in this case for a final decision to be made on whether the building contractor can only be exonerated from his liability in tort where he makes good the defects in the work by providing a performance which is intended to eliminate the danger in question, even where the client no longer has an effective contractual claim to the removal of the defect because the time limit for bringing such an action has expired, or whether the (additional) responsibility of the contractor also lapses where he has given unambiguous information to persons relying upon the security provided by the performance of his duties that the work in question would provide only inadequate protection [references omitted]. For it is not in dispute in this case that the defendant had not clearly informed either the plaintiff or her husband before the leakage of water on 26 July 1982 that the floor and walls were unsuitable for the purposes of eliminating the dangers resulting from water entry.

(dd) The existence of the defendant’s duty of care in tort is likewise not undermined by his claim that the plaintiff had used the basement rooms for displays in contravention of the building regulations. This fact does not place the plaintiff, who was using the basement to the house on the basis of a valid tenancy agreement, outside the sphere of persons whom the defendant should have protected against water damage occurring in the vicinity of the basement by building in a workmanlike fashion [reference omitted].

(b) The plaintiff’s application is right to question the view of the OLG that she had no claims for compensation in tort against the defendant because she had acted at her own risk by bringing kitchen furniture into the basement rooms and that notwithstanding the fault of the defendant, she was overwhelmingly contributorily negligent.

(aa) The fact that the OLG denied the plaintiff’s claims for compensation stating that she had acted at her own risk and did not balance her fault against the (assumed) negligence of the defendant, indicates that the OLG has followed the later case law of the Reichsgericht [references omitted] which saw ‘acting at one’s own risk’ as a form of consent to the interference with the plaintiff’s interests which acts as a justification. This interpretation has already been held by this Division in its judgment of 14 March 1961 (BGHZ 34, 355 at 360) [other references omitted] as appropriate for use only in exceptional cases such as dangerous sports, as a realistic and legally correct evaluation of conscious risk-taking. If there is no such exceptional situation, as in this case, then according to the established case law of the Chamber there is merely a question to be assessed under § 254 I BGB, as to what extent the victim through his conduct has contributed to the dangerous situation in which the defendant’s own conduct led to the occurrence of damage [references omitted]. In contrast to the view put forward by the OLG, this makes it necessary for the court to weigh up against each other the causally relevant contributions made by each party in order to assess the degree to which the defendant is liable.

(bb) The arguments so far advanced here do not provide a justification, on the basis of the passing comments made by the OLG as regards the matter of the plaintiff’s contributory negligence, for an evaluation of the respective contributions to conclude in a complete exoneration of the defendant from liability. Of course it is only the role of this court, when reviewing the decision of the judge of fact, merely to assess whether he has fully and correctly taken into account all relevant circumstances within the framework of § 254 I BGB, and has not breached any rules of logic or empirically derived principles [references omitted]. The OLG has not, however, remained within these limits as so defined.

3. (a) The OLG assumes that after the leakages of water on 18 May 1981, as well as on 7 and 10 August 1981, which preceded the occurrence of damage on 26 July 1982, in each case the defendant carried out repair work. However, even taking this as a starting point, there is insufficient basis for the conclusion that in July 1982 the plaintiff no longer relied upon the basement area being waterproofed. For the plaintiff, whom the OLG was prepared to acknowledge in its judgment of 22 July 1988 in the context of proceedings brought in respect of the water leakages of 7 and 10 August 1981 was still relying on the basement being waterproof after the leakage of 18 May 1981, argued in this case that the defendant had stated that the cause of the water leakages in August 1981 was a wall duct for pipes which was not waterproof. Since the OLG both accepted that the fact that the wall being not waterproof was the cause of that loss and also assumed that the defendant had undertaken damp-proofing work on the wall duct in order to remove the defect, there exist no sufficient grounds in fact for the view that in July after the repair work the plaintiff should have expected the basement area no longer to be watertight. The OLG was wrong to state that this point could be derived from the fact that previous renovation works undertaken by the defendant had proved to be inadequate. In the first place the repair works, as the OLG itself accepted, were carried out on other weaknesses in the damp-proofing; second, even multiple unsuccessful attempts to carry out repairs by a contractor do not as such destroy the reliance of the client that the work previously undertaken to eliminate the defect will have finally succeeded.

(b) It was in truth appropriate for the plaintiff to rely as such upon the ultimate elimination of the danger from water, since the defendant, as the plaintiff stated in her claim and as she sought to prove in her application for a hearing of witnesses, ‘announced to the plaintiff that the waterproofing was complete’ after finishing the improvement work following the water entry of August 1981, and ‘guaranteed to the plaintiff that the basement was now waterproof’. It is a breach of the principle of good faith (§ 242 BGB) for the defendant to argue that the plaintiff could not rely upon such statements. The statements by the plaintiff were, despite the views of the OLG, sufficiently substantiated, all the more since it was principally the task of the defendant to demonstrate the circumstances in which the plaintiff could be said to be contributorily negligent. In any case, the OLG should not have reached the conclusion, as the plaintiff’s appeal correctly asserts, that the plaintiff should have anticipated future dangers arising from water, before it had evaluated the witness testimony offered by the plaintiff.

Back to top

This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.