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Case:
BGH NJW 1978, 1051 VIII. Civil Senate (VIII ZR 1/77) = JR 1978, 240
Date:
11 January 1978
Translated by:
J. Shaw
Copyright:
Professor B.S. Markesinis

Facts

The defendant ran a sandpit. On February 1, 1973 she delivered to the plaintiff 6m3 of sand which was intended to be used as the outer cladding to the plaintiff’s newly constructed house. The plaintiff had the outer cladding applied in spring 1973, and subsequently damage in the cladding began to appear which were attributable to certain mineral impurities present in the sand delivered by the defendant. Alleging that the defendant had quarried the impure sand, which was unsuitable for use as an outer cladding, out of a new sandpit without first examining it to see whether it was pure, the plaintiff brought a claim for compensation against the defendant on January 8, 1974. Notice of the claim was served upon the defendant on February 21, 1974. The LG rejected the claim on the grounds that it was barred by the statute of limitations. The OLG rejected the plaintiff’s appeal. The permitted appeal to the BGH was likewise unsuccessful.

For the following

Reasons

[In Point I., the court agreed with the conclusion of the OLG that the plaintiff had no claim against the defendant in respect of the delivery of the impure and therefore defective sand based on the statutory guarantees applicable to the sale of goods, either because such a claim was not possible, or because it was no longer possible since the time limit for bringing the action had expired (§ 477 BGB).]

II. Finally, the plaintiff also has no claim based on damage to his property (§ 823 I BGB) which is not subject to brief limitation periods and which is consequently not out of time (§ 852 BGB [references omitted]). The question which has been debated in the literature and which the plaintiff’s application places at the forefront of this case concerns the circumstances in which a client has claims against a building contractor for damage to his property based on defects in the construction of a building. Such a general question, however, is not at issue here because the defendant was not working as a building contractor but had only delivered the defective sand on the basis of a contract of sale, and it was the plaintiff who then used the sand, mixed with other building materials, to apply the cladding to his house which was previously unclad [references omitted]. Even the judgment of this court of November 24, 1976 (BGHZ 67, 359 [other references omitted]) and the question which arose in that case as to whether a purchaser, who had bought a technical installation from the seller which contained no defects, with the exception of a faulty safety switch, could bring a claim against the seller when the failure of the switch resulted in damage to the installation itself, concerns an entirely different set of factual circumstances which do not apply here.

What is decisive here is that according to the findings of the OLG, which are correct in law, the plaintiff’s building, which previously did not have an external cladding, did not suffer a reduction in value as compared to what it was previously worth, as regards either its physical substance or use as a dwelling house. Accordingly, the present case is to be distinguished also from factual circumstances which were present in the judgment of the BGH of November 6, 1963 (BB 1964, 65). The plaintiff’s application is incorrect on this point. For that case involved a finished house which already had an outer cladding, but which subsequently suffered a reduction in its value as a result of damage from smoke and soot emanating from neighbouring land. The financial burden suffered by the plaintiff, as a consequence of what he argued was the need to remove the cladding, therefore represents pure economic loss and therefore represents an interference with an interest which is not protected by § 823 I BGB. Since, moreover, the mere fact of delivering what was, from the beginning, defective sand does not in itself represent property damage to this building material, then the only remaining question is whether the plaintiff has suffered property damage as regards those building materials (chalk, cement) which originally belonged to him and which were mixed with the defective sand to form the outer cladding, and which consequently became worthless. The OLG correctly denied this claim. The plaintiff overlooks the fact that when the outer cladding was manufactured, his original property interest in the building materials which he provided lapsed as a consequence of the mingling (§ 948 BGB) and the processing

(§ 950 BGB) of the materials, and that he acquired a new, albeit impaired, property interest in the cladding material. Therefore there is no loss which can be defined as property damage affecting the plaintiff in respect of which he could claim compensation under § 823 I BGB [reference omitted].

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