Due to the insufficient tread widths of the steps, which were already laid out in the plans, the property developer demands the removal costs of 90,000 euros from the contractor as an advance on costs. The contractor defends himself by claiming that he verbally informed the property developer's construction management of his concerns and that the latter instructed him to carry out the installation work anyway, whereas the property developer denies having correctly notified the contractor of his concerns. Translated with www.DeepL.com/Translator (free version)
The OLG denies the property developer's claim for advance payment pursuant to Sections 633, 634 No. 2, Section 637 BGB in conjunction with Section 13 VOB/B. § SECTION 13 VOB/B. The contractor proved that he verbally informed the property developer's employee employed as site manager about the insufficient tread width of the steps and that the latter instructed him to continue the work.
The contractor does not have to additionally contact the property developer directly, even though the site manager disregards the notice of concern. This principle only applies to cases in which the site manager is outside the sphere of the client, in particular because he is bound to the client by a contract for work. If the site manager is in an employment relationship with the client, the notification of concerns comes directly into the sphere of the client, which is why the instruction disregarding the notification is then also attributable to the sphere of the client. The contractor therefore no longer has to carry out the work due to defects and is therefore released from liability.
