OGH on ‘Conflicting' Works-Contracts

Aug 16, 2024 Benn-Ibler Rechtsanwälte

A contract for work and services (in Austria referred to as a Werkvertrag) is said to be ‘conflicting’ if a specific execution of the work is agreed upon, but due to certain circumstances the job is not performed suitably in fulfilling the (at least implicitly) intended purpose of the contract.

On the basis of an offer made in March 2019, the defendant in the cased at hand was commissioned by the plaintiff to renovate the leaking roof of her house. The defendant carried out the work and subsequently invoiced her just under EUR 17,200, which the plaintiff did pay.

However, the renovation job had not been carried out properly and professionally because the defendant had failed to consider the slope of the roof when planning the work. In accordance with applicable Austrian standards (ÖNORM), slopes are necessary in order to ensure that water is directed to the drainage point as quickly as possible. However, in the case at hand, if the annual roof maintenance were to be carried out properly, no long-term damage to the plaintiff’s roof is to be expected as a result of the defendant’s work which did not meet ÖNORM standards.

The plaintiff claimed payment of more than EUR 13,400. As the defendant had refused to fix his faulty work in order to ensure compliance with ÖNORM standards, he was liable for the costs of the substitute performance. The defendant then argued that he and the plaintiff had not agreed that the roof work had to comply with ÖNORM standards.

The lower courts upheld the claim.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed this decision and clarified that execution of a work according to ÖNORM does not need to be expressly included in a contract. In the absence of any agreement to the contrary, work must be carried out in accordance with the state of the art and all applicable ÖNORM standards.

In the case of a ‘conflicting’ contract for work and services, the contract must first be adjusted for any fault. Only then do applicable remedies under the law of guarantee apply. This applies in the same way as it does in the case of a breach of one’s duty to warn. In such a case, the customer must be put in the position they would have been in if the entrepreneur had fulfilled their duty to warn. Therefore, customers cannot claim the costs that they would have had to bear if they had received a proper warning.

OGH 5 Ob 200/23g (27 June 2024)