OLG Brandenburg, judgement of 29.07.2021 – 12 U 230/20 BGB §§ 242, 254; VOB/B § 4 para. 3

According to the BGH (judgement of 10.04.1975 – VII ZR 183/74, NJW 1978, 1217), a verbal “notice of concern” is not suitable to exclude the liability for defects according to § 4 No. 3 VOB/B. The concerns of the contractor shall be communicated in writing so that they thereby receive the necessary importance. If the client ignores the reliable verbal notification of concerns, the contractor can invoke contributory negligence on the part of the client pursuant to § 254 BGB, which in individual cases can even lead to the client having to bear the costs of the defects alone.

In this case:
A  specialist construction company in the field of floor coatings, structural and civil engineering, commissioned the garden and landscape works to a subcontractor that shall take care of the paving work in the walkway area of a parking deck. When the client complained about joint displacements on the paving surface and sued the subcontractor for an advance on the costs of rectifying the defects, the subcontractor claimed that it had raised concerns in writing due to the low construction height and had rejected the warranty in this respect. The Potsdam Regional Court ordered the subcontractor to pay the advance on costs because the content of the written notification of reservations had not been sufficient. The contractor’s appeal was directed against this action.

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