Defects of work / violation of generally recognized rules of technology (not: “state of the art”)

According to the settled case law of the Federal Court of Justice alone non-compliance with the general recognized principles of technology (“AaRT”) by a contractor (e.g. a construction contractor) to a defect in work (e.g. construction). Deadline “The most modern“used. The term, however, is much narrower and applies in principle Not in employment contract law (and construction contract law); it is used, for example, in the Federal Immission Control Act.

AaRTs are regularly valid under the employment contract tacitly agreedunless the parties have agreed otherwise. As far as the construction contract is concerned and the validity of the general terms and conditions of the construction works contract (VOB / B) has been agreed, this is expressly regulated in § 13 I VOB / B.

Of particular importance here is the fact that, according to the common opinion, a defect in the work should be incompatible with aaRT andThis depends on whether the service is otherwise free from defects, is of the agreed quality, is fit for the contractual application, is economically or technically advantageous and / or there is damage.

So what does aaRT compliance mean?

According to the Supreme Court, a rule is universally recognized when it represents the dominant view of (technical) experts.

This assumes that she has established herself as (theoretically) correct in science (1. Prerequisite: Requirement: general scientific recognition).

It is not enough, however, for the rule to be represented in specialist literature or taught at universities. It also had to find its application in practice and it worked most of the time (Second requirement: Apprenticeship during the trial period).

DIN standards and comparable regulations may or may not reflect aaRT. In individual cases, aaRT may rather go beyond the specifications of DIN standards. If advances in construction technology have outpaced DIN standards, for example, the work may be defective despite complying with the relevant DIN regulations. However, the DIN regulation may also be too up-to-date, especially since the rule has to work not only in science but also in practice.

In court proceedings, the court will regularly order an expert to investigate which aART apply to a specific case and whether they have been violated. In out-of-court disputes, it makes sense for the parties to the dispute to agree an expert who, for example, by means of an arbitration report, should investigate the applicable AART and, if necessary, its violation.

In this context, it is very important that the legal principles of aaRT are clear to the expert. In practice, it often turns out that experts are not familiar with the two aaRT requirements mentioned above and therefore prematurely and erroneously assume that aaRT has been violated or complied with. A lawyer working in a specific case can prevent such misconceptions by more precisely formulating the subject of evidence and the two aaRT requirements are clearly mentioned and explained.

Uncertainties also exist if the contractor was new types of workmanship or building materials used. In such cases, the (builder) contractor often argues against a breach of aaRT and therefore defective work that it must be acceptable, otherwise there would never be new solutions. This reasoning is wrong.

As a rule, the entrepreneur can benefit from innovation. However, he must inform the client about explain the risks involved. If it fails to do so, the customer is entitled to claims for defects. In such cases, the contractor can only counteract liability for defects if he thoroughly tests the new type of design or new material to ensure its suitability.

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