Who provides planning services must have the necessary specialist knowledge

If contractors not only assume performance, but also planning services, they undertake a comprehensive obligation to provide information to the client. They must therefore commission experts themselves, where applicable (Higher Regional Court of Düsseldorf, judgement of October 6, 2017, ref. 22 U 41/17).

The facts of the case

The plaintiff commissioned the defendant with the construction of a storage hall for steel mill dust and pellets; the parties agreed that the VOB/B [German construction tendering and contract regulations, part B] should apply. The defendant was also to take over the execution, plant and detailed planning. After acceptance, cracks showed with a width of more than 1 mm in places. Some of the cracks were separating cracks; they extended through the entire thickness of the concrete slab. After the plaintiff had unsuccessfully requested the defendant to repair the defects, it had the base plates remade and demanded inter alia the costs incurred as a result of this from the defendant. The Duisburg Regional Court awarded it the costs, less business-as-usual costs. The plaintiff wanted a dense base plate. In view of the intended use, the defendant did not however sufficiently point out that it had reservations about the planned type of execution.

The consequences

The Higher Regional Court in Düsseldorf rejected the defendant’s appeal: The defendant owed the client a functional, impermeable base plate, but did not deliver. In doing so, the court also takes a position on the testing and notification duties and the consequences of their breach. A specialist company must always point out if an evidently desired purpose cannot be achieved by executing a specification. Simply because a notification or testing obligation was breached does not establish any liability for defects of the contractor. If the application of the VOB/B has been agreed upon, the contractor must point out reservations it has (Section 4 (3) VOB/B). If it breaches this duty, the contractor is liable for defects. This applies in particular if the contractor also assumed planning services. If a contractor is incapable of sufficiently checking whether the service to be executed for the purposes of the client is suitable, it must acquire the expertise required for this. For this, it must commission specialized companies, where applicable.

What is to be done?

The judgment makes it clear what significance the obligation to notify reservations has if it has been agreed that the VOB/B is to apply. Even if, as often happens, the contractor takes over the final planning stage itself, it must draw up these plans with care and advise the client. If contractors engage themselves, they should ensure in advance that the necessary planning expertise is also available to them. If they do not have it in-house, they should collaborate with a suitable specialized planner from the beginning.