OLG Celle, order of 09.04.2019 – 14 U 157/18; BGH, order of 11.03.2020 – VII ZR 119/19 (non-admission appeal dismissed)

What happens if during the renovation of a building something suddenly goes miserably wrong? Which are the legal precautions you can take? Let’s learn a bit more about the German Code of Civil Procedure An attorney could always help you. 

In this case: 

The client has decided to get a school building extensively renovated and decides to commission a roofer to carry out some roofing renovation works. After the roofers has completed his work, a fire breaks out in the building, causing damage of around 1.5 million euros. The contracting authority has the damage repaired. On behalf of his building insurer, the restoration work is supervised by an expert who checks the repair invoices and releases them for payment. The insurers claims compensation from the roofer after the work has been carried out. The causation of the damage by the roofer is disputed, as is the amount of the damage. The Regional Court dismissed the action and the Higher Regional Court rejected the appeal filed against it. The action fails because the extent of the damage is not sufficiently demonstrated.  The insurer did not provide a sufficiently concrete account of the restoration measures carried out, nor did it provide details of the costs incurred for the respective restoration measures. Since the fire damage occurred during an ongoing construction project, the insurer would also have had to describe the state of the building before the fire and, accordingly, the measures taken to restore this state of the building. Such a presentation was not made.  The OLG rejects an estimation of the amount of damages, which is in principle admissible according to § 287 ZPO, because the submission of the insurer does not contain the necessary basis for estimation.

What have you learnt?

Section 287 of the Code of Civil Procedure allows the judge to estimate damages. However, the court may only use the instrument of estimating damages if it has been established that liability exists on the merits. An estimate of damages also requires that the claimant provides tangible evidence of the amount of damages as a basis for the estimate.

Section 287 of the Code of Civil Procedure 
Investigation and determination of damages; amount of the claim

(1) Should the issue of whether or not damages have occurred, and the amount of the damage or of the equivalent in money to be reimbursed, be in dispute among the parties, the court shall rule on this issue at its discretion and conviction, based on its evaluation of all circumstances. The court may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be involved to prepare a report. The court may examine the party tendering evidence on the damage or the equivalent in money thereof; the stipulations of section 452 (1), first sentence, subsections (2) to (4) shall apply mutatis mutandis.

(2) In the event of pecuniary disputes, the stipulations of subsection (1), sentences 1 and 2, shall apply mutatis mutandis also to other cases, insofar as the amount of a claim is in dispute among the parties and to the extent the full and complete clarification of all circumstances authoritative in this regard entails difficulties that are disproportionate to the significance of the disputed portion of the claim.

costruction law