Cost of rem­oval and instal­la­ti­on to be reim­bur­sed also in the case of prefabrication

Sin­ce 1 Janu­ary 2018 at the latest, the fol­lo­wing has been made clear due to the modi­fi­ca­ti­on of § 439 subs. 3 of the Ger­man Civil Code (BGB): The sel­ler must reim­bur­se the buy­er for the cost of rem­oval and instal­la­ti­on incur­red as a result of a defec­ti­ve item, regard­less of fault. Howe­ver, this only appli­es if the defec­ti­ve item was inte­gra­ted into or atta­ched to ano­ther item in kee­ping with its natu­re and pur­po­se (her­ein­af­ter: “instal­la­ti­on”) befo­re the defect beca­me apparent.

Even if the dis­cus­sion about the requi­re­ment of fault has thus ended, the cost of rem­oval and instal­la­ti­on still holds poten­ti­al for dis­pu­tes. The focus is usual­ly on the amount and the neces­si­ty of the cos­ts incur­red, but also on the ques­ti­on of whe­ther an instal­la­ti­on within the mea­ning of the law has taken place at all. The lat­ter ques­ti­on was addres­sed by the Ger­man Fede­ral Court of Jus­ti­ce (BGH) in its ruling of 21 June 2023.

Facts of the case

In the case in ques­ti­on, the plain­ti­ff orde­red stain­less steel pipes from the defen­dant for a total pri­ce of 785,038.64 EUR in order to install them as part of piping sys­tems in crui­se ships. After deli­very, the plain­ti­ff began the pre­fa­bri­ca­ti­on of the piping sys­tems by wel­ding the orde­red stain­less steel pipes tog­e­ther with the aid of con­nec­ting ele­ments to form so-called “piping pools”. Only after this pro­cess did mate­ri­al defects in the stain­less steel pipes beco­me appa­rent, so that the plain­ti­ff dis­con­tin­ued the pre­fa­bri­ca­ti­on and dis­as­sem­bled the piping pools in order to be able to reu­se the con­nec­ting ele­ments used (pipe fit­tings and gau­ge con­nec­tions) for the rene­wed pre­fa­bri­ca­ti­on of piping pools after repla­cing the stain­less steel pipes. The plain­ti­ff clai­med from the defen­dant reim­bur­se­ment of the cos­ts of 1,372,516.82 EUR (plus inte­rest), which had alre­a­dy been incur­red by the dis­as­sem­bly and which would still be incur­red during the rene­wed pre­fa­bri­ca­ti­on. The action was unsuc­cessful in the lower courts but was suc­cessful befo­re the court of second appeal (Revi­si­on).

Legal grounds

The court of first appeal (Beru­fung) had denied the assump­ti­on of an instal­la­ti­on within the mea­ning of the law and thus rejec­ted the cla­im for reim­bur­se­ment of cos­ts becau­se the plan­ned inte­gra­ti­on of the pipes into the crui­se ships had not yet taken place. Moreo­ver, so the court argued, reim­bur­se­ment of cos­ts was also excluded becau­se the plain­ti­ff had crea­ted a new item by wel­ding the pipes tog­e­ther with the help of con­nec­ting ele­ments and the buy­er had to bear the risk rela­ted to the crea­ti­on of a new item.

The BGH rejec­ted the­se posi­ti­ons. Accor­ding to the BGH, the plain­ti­ff is entit­led to reim­bur­se­ment of cos­ts under § 439 subs. 3 sen­tence 1 BGB (old ver­si­on), regard­less of fault, becau­se the stain­less steel pipes are to be inte­gra­ted into ano­ther item so that an instal­la­ti­on within the mea­ning of the law is given.

The BGH argues that it does not mat­ter whe­ther the plan­ned instal­la­ti­on has alre­a­dy been ful­ly com­ple­ted or whe­ther a new item is crea­ted. The court holds that the­re is no indi­ca­ti­on that would jus­ti­fy such a rest­ric­ti­ve inter­pre­ta­ti­on of the pro­vi­si­on in § 439 subs. 3 BGB. Rather, the instal­la­ti­on pro­cess can take place in seve­ral stages and must the­r­e­fo­re not be redu­ced to the com­ple­ti­on of the final stage. Ins­tead, the decisi­ve aspect is whe­ther the rele­vant pre­fa­bri­ca­ti­on pro­cess cor­re­sponds to the natu­re and pur­po­se of the item. Other­wi­se, the accru­al of a cla­im to reim­bur­se­ment of cos­ts would often depend on chan­ce, name­ly on when a defect beco­mes appa­rent in the fabri­ca­ti­on pro­cess. As to the argu­ments invo­ked by the court of first appeal with respect to the crea­ti­on of a new item, the BGH takes the fol­lo­wing stand­point: The pro­vi­si­on of § 439 subs. 3 BGB only cea­ses to app­ly when the defec­ti­ve item no lon­ger exists in its ori­gi­nal form, for exam­p­le due to blen­ding or mixing. Howe­ver, as long as the inte­gra­ti­on of the item, i. e. the instal­la­ti­on, is rever­si­ble, indi­vi­du­al chan­ges to the item in the cour­se of working or pro­ces­sing do not lead to the exclu­si­on of a cla­im to reim­bur­se­ment of cos­ts for rem­oval and installation.

Accor­ding to the BGH, the pre­fa­bri­ca­ti­on car­ri­ed out by the plain­ti­ff in this case cor­re­sponds to the natu­re and pur­po­se of the stain­less steel pipes, which is why an instal­la­ti­on within the mea­ning of § 439 subs. 3 BGB is to be affirm­ed. The BGH holds that this appli­es despi­te the fact that the stain­less steel pipes had not yet been inte­gra­ted into the hull and thus the final instal­la­ti­on had not yet taken place.

The BGH fur­ther argues that the his­to­ri­cal inter­pre­ta­ti­on also speaks in favour of a broad under­stan­ding, becau­se the legislator’s inten­ti­on in adop­ting this pro­vi­si­on was to ensu­re that craft­smen and entre­pre­neurs are not left to bear the follow-up cos­ts of pro­duct defects for which the sup­pli­er or manu­fac­tu­rer is respon­si­ble. The inte­rests of the defen­dant are suf­fi­ci­ent­ly safe­guard­ed in that the defen­dant can have recour­se to the manu­fac­tu­rer as the cau­ser of the defect accor­ding to the pro­vi­si­ons on recour­se claims in the sup­p­ly chain.

Eva­lua­ti­on and consequences

The ruling of the BGH is the logi­cal con­clu­si­on from the inter­pre­ta­ti­on of § 439 subs. 3 BGB in con­for­mi­ty with the per­ti­nent EU Direc­ti­ve and, moreo­ver, also cor­re­sponds to the inten­ti­on of the Ger­man legis­la­tor (BT-Drucks. 18/8486, p. 1, p. 2 and p. 39). With the amend­ment of § 439 subs. 3 BGB, the legis­la­tor pri­ma­ri­ly inten­ded to reli­e­ve craft­smen and entre­pre­neurs who have purcha­sed defec­ti­ve (buil­ding) mate­ri­als. They should be able to cla­im from the sel­ler reim­bur­se­ment of the resul­ting cos­ts, irre­spec­ti­ve of fault. A too rest­ric­ti­ve inter­pre­ta­ti­on of § 439 subs. 3 BGB with regard to the assump­ti­on of an instal­la­ti­on would run coun­ter to this.

The ruling is of high prac­ti­cal rele­van­ce to com­pa­nies that are acti­ve in an upstream fabri­ca­ti­on stage or have pro­ces­ses upstream of their actu­al fabri­ca­ti­on or ser­vices. Typi­cal­ly, for ins­tance, 2nd- and 1st-tier sup­pli­ers in the auto­mo­ti­ve sup­p­ly indus­try are often con­cer­ned ther­eby. Based on the abo­ve argu­men­ta­ti­on of the BGH, for exam­p­le, steps car­ri­ed out by sup­pli­ers for assem­bly (moun­ting, wel­ding, gluing, plug­ging, scre­wing, etc.) can con­sti­tu­te an instal­la­ti­on within the mea­ning of § 439 subs. 3 BGB, even if the final instal­la­ti­on into the supplier’s pro­duct or the instal­la­ti­on into the final vehic­le has not yet been com­ple­ted. As a con­se­quence, sup­pli­ers who car­ry out such upstream fabri­ca­ti­on steps can gene­ral­ly also cla­im reim­bur­se­ment of instal­la­ti­on and rem­oval cos­ts from sel­lers of defec­ti­ve parts.


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