Workmanship is defective if the work performed does not have the agreed quality or is not suitable for ordinary use. The central provision is § 633 BGB. It determines when a work produced by a trade business under a contract for work and services (Werkvertrag) pursuant to § 631 BGB is free from material defects and defects of title.
Whether leaking tiles in the bathroom, a crookedly installed door or a heating system that does not work properly: defects in workmanship are among the most frequent points of dispute in contract law. In §§ 634 to 638 BGB, the German Civil Code (Bürgerliches Gesetzbuch) provides clients with a tiered system of rights ranging from remedial work to damages. Anyone who knows this sequence avoids costly mistakes and considerably strengthens their position vis-à-vis the trade business.
What legally constitutes a defect?
Under § 633 Abs. 2 BGB, a work is defective if it does not have the agreed quality. In the absence of an express agreement, the decisive question is whether the work is suitable for the use presupposed in the contract or at least for ordinary use and has a quality that is customary for works of the same kind and that the client can expect.
A defect therefore does not only exist in the case of obvious faults. Even technically functioning work can be defective, for example if it is visibly untidy or deviates from the generally recognised rules of technology, even if no damage has occurred yet. Example: if a tiler lays the floor covering without the necessary slope towards the drain, this is a defect, even if the tiles look flawless.
Incomplete performance, such as the absence of agreed accessories, also constitutes a defect within the meaning of § 633 BGB. It is important to document the defect as precisely as possible, for example with photos and an acceptance record, in order to avoid later disputes about the condition of the work.
The first step: demanding subsequent performance
Subsequent performance (Nacherfüllung) under § 635 BGB takes precedence over all other rights. As a rule, the client must first give the trade business the opportunity to remedy the defect before asserting further rights such as withdrawal or damages.
Under § 635 Abs. 1 BGB, the contractor may choose whether to remedy the defect or to produce a new, defect-free work. If subsequent performance is only possible at disproportionate cost, the contractor may refuse it under § 635 Abs. 3 BGB. Conversely, you do not have to set a deadline if subsequent performance is unreasonable for you, for example because the relationship of trust has been destroyed by serious breaches of duty (§§ 636, 637 Abs. 2 BGB).
If the tradesperson does not carry out remedial work: self-remedy
If the deadline set expires without remedial work being carried out, the client may, under § 637 BGB, have the defect remedied themselves and demand reimbursement of the necessary costs from the original trade business. This so-called self-remedy (Selbstvornahme) is a powerful tool, but should only be used after the deadline has expired without success. You do not have to advance the expected costs: under § 637 Abs. 3 BGB, you can demand an advance payment from the trade business.
Under § 637 Abs. 2 BGB in conjunction with § 323 Abs. 2 BGB, setting a deadline is exceptionally dispensable if the contractor seriously and definitively refuses subsequent performance, if subsequent performance has failed or is unreasonable for you, or if special circumstances justify immediate action, for example in the event of acute danger from water damage.
Withdrawal or reduction of the remuneration
If a deadline set also expires without success or if subsequent performance has failed, the client may withdraw from the contract under § 634 Nr. 3 BGB in conjunction with § 636 BGB or reduce the remuneration (Minderung) under § 638 BGB. Withdrawal (Rücktritt) leads to the contract being unwound. Where work has already been installed, compensation for its value under § 346 Abs. 2 BGB regularly takes the place of its return, which makes unwinding difficult in practice. In the case of a merely insignificant defect, withdrawal is excluded under § 323 Abs. 5 Satz 2 BGB, but a reduction then remains possible.
In practice, a reduction under § 638 BGB is usually the more practicable route. The remuneration is reduced in the proportion by which the value of the work is diminished by the defect. Example: if the defective tiling costs 8,000 euros and the missing slope reduces its value by 15 percent, the client may deduct 1,200 euros from the remuneration.
Damages for defective workmanship
If the defect causes further damage, for example water damage from a leaking pipe, damages (Schadensersatz) may be claimed under § 634 Nr. 4 BGB in conjunction with § 280 Abs. 1 BGB. The prerequisite is that the trade business is responsible for the defect, i.e. acted negligently or intentionally. Fault is presumed, so the business must exonerate itself.
You can claim compensation for consequential damage, such as damaged furniture or necessary drying measures, without first setting a deadline. If, on the other hand, the claim concerns damages in lieu of performance, i.e. the defect itself, a deadline for subsequent performance must generally be set first, unless this is exceptionally dispensable. According to the case law of the Federal Court of Justice (Bundesgerichtshof), only estimated remedial costs that have not actually been incurred are not recoverable as damages. Anyone who wants to have the defect remedied can instead demand an advance on costs or reduce the remuneration.
Limitation periods: how long can you assert defects?
The limitation of claims for defects (Verjährung) is governed by § 634a BGB. For work on a building, the period is five years from acceptance; for other work, such as repairs or maintenance work, a period of two years applies. For works without a specific rule, the regular limitation period of three years under § 195 BGB applies.
Acceptance: why it is so important
Acceptance (Abnahme) under § 640 BGB marks a decisive legal turning point. Upon acceptance, the remuneration becomes due under § 641 BGB; in the case of construction contracts, additionally only after a verifiable final invoice has been issued (§ 650g Abs. 4 BGB). In addition, the risk passes to the client, the burden of proof for defects is reversed and the limitation period begins to run.
Before acceptance, the trade business must prove that its work is free from defects. After acceptance, the burden of proof lies with the client, who must then prove that the defect already existed at the time of acceptance and did not arise later.
- Inspect the work carefully before acceptance and list any recognisable defects in writing. - Refuse acceptance in the case of material defects or declare acceptance subject to reservation. - Have an acceptance record signed that contains all defects identified. - Always respond in good time to a request for acceptance with a deadline and name at least one specific defect, otherwise the work may be deemed accepted under § 640 Abs. 2 BGB. - If you are aware of a defect at the time of acceptance, you must expressly reserve your rights, otherwise you lose, to that extent, the rights to subsequent performance, self-remedy, withdrawal and reduction under § 640 Abs. 3 BGB.