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BGH NJW 1991, 562 VII Civil Senate (VII ZR 120/89)
11 October 1990
Professor B.S. Markesinis


In 1979/80, the plaintiff and his wife had a new building built on a piece of land belonging to them. The first defendant was responsible for carrying out the structural work on the building. The supervision of the building work on site was entrusted to the second defendant, an architect. Since no proper damp insulation was fitted, the basement of the building became very damp. The plaintiff had rented this and other parts of the building to a company (F Ltd), which he ran. F Ltd had stored machines in the damp rooms, and these rusted as a result of the damp. The plaintiff claimed compensation from the defendant for the loss which he suffered as a result of the defective building work. He calculated his loss to be DM 139,697.84. In so far as the plaintiff sought to claim in respect of damage, which had accrued to F Ltd, his claim rested upon a deed of assignment dated January 18, 1982 the text of which covered only the claims against the first defendant.

The Landgericht held the defendants liable for the defects and held them to be jointly and severally liable in the amount of DM 19,298.93. The plaintiff appealed claiming a further DM 91,793.22 in damages. The Oberlandesgericht accepted the appeal in part, holding the defendants liable for a further DM 31,381.03. The second defendant appealed to the Bundesgerichtshof, and the appeal was accepted to the extent that he had been held liable for damages in the amount of DM 31,022.50 in respect of the damage to the machines. His appeal against the finding of liability failed.


I. The OLG is of the view that the defendant is liable to the plaintiff, and that he must pay 50 per cent of the compensation in respect of the damage caused to the machines.

1. The external insulation of the walls of the basement in contact with the ground was said to be defective. As the architect responsible for on-site supervision of the work, the defendant breached his duty to supervise adequately the performance of the damp-proofing work which experience had taught was particularly delicate and significant in terms of the loss which would be caused by defective work. He was, therefore, jointly responsible for the defective damp-proofing. The defendant’s appeal concedes this point.

2. The OLG further held on the basis of expert reports and witness statements that the defects in the damp-proofing, taken in conjunction with certain other defects, had caused the damp in the basement and that it was to this that the rust on the machines was attributable. [Procedural point omitted].

II. The OLG also stated that the plaintiff could claim compensation from the defendant in respect of the damage caused to his property, either through the principles of Drittschadensliquidation, or on the basis of the claims duly assigned to him by F Ltd on the basis of a contract with protective effects for third parties or on tortious grounds. The plaintiff has, it is said, become the owner of the claim against the defendant as a consequence of the assignment; this was the appropriate interpretation of the deed of assignment. The final point was that assignment did not contravene the prohibition on contracting with oneself.

1. The Court leaves open the question of whether the damage to the machines may be claimed from the defendant according to the principles of Drittschadensliquidation. It may also remain open whether F Ltd may derive claims as a third party on the basis of the protective effects of the construction contract concluded between the parties.

2. It is clear in any case that the plaintiff has a tortious claim. The defendant has breached the duty of care which he owed to F Ltd in that he did not ensure, when performing the role of supervising the building work which was entrusted to him, that the first defendant installed the damp insulation in the basement free from defects.

(a) According to the case law of the BGH, an architect may be liable in tort on the basis of a breach of his supervisory obligation for the loss thereby caused. Thus, for example, the architect responsible for the building work was held liable in tort for the loss caused by the collapse of a roof or ceiling [references omitted]; the same applies to the damage caused to a person using a staircase which proved to be unsafe [references omitted]. The tortious responsibility of the architect was also accepted for loss caused by damp to the property of third parties resulting from inadequate damp-proofing or a defective roof [references omitted]. This tortious responsibility of the architect is derived from the fact that during the construction process he not only owes duties on the basis of the contract with the builder, but he also owes duties of care in tort to third parties who are expected to come into contact with the building. For, in the normal course of events, such persons may rely on the architect carrying out in the proper way those tasks which will secure their protection against loss in the future [reference omitted]. That, also, applies to the tenant of a building. The fact that such a person may be, in certain circumstances, less worthy of protection than other third parties who only occasionally come into contact with the building, is no obstacle to a finding that the architect is liable. Of course, in normal circumstances the tenant will have a claim for compensation against the landlord where loss is inflicted by events such as those at issue. That factor makes no difference, however, to the architect’s duty of care. Even for the builder himself, claims in tort are not in principle excluded by the fact that there are parallel claims in contract [references omitted]. Nor, however, is the tenant prevented from pursuing claims in tort against the architect, even though he may have a contractual claim against the landlord. The contractual liability of the landlord is not intended to exclude tortious claims against other persons who inflict loss on the tenant.

The liability of the architect is not excluded by the fact that it is in the first instance the main building contractor who is responsible for the building works. The Division has rejected this argument also to the extent that the architect owes a duty of care to safeguard the building site [references omitted]. Just as the architect may be responsible for the safety of the building site within the framework of the tasks which he has undertaken to perform, so the supervisory obligations which are intended to protect the residents of the building and their property may generate a duty of care.

This line of case law is likewise not challenged in the literature [references to literature omitted]. While it is possible to find in the literature signs of a move towards restricting the duty of care [references to literature omitted], there is no need in this case to take a definitive position on this matter. It may be doubtful in individual cases how far the duty of care of the architect extends. The Sixth Division has already referred to this point [reference omitted]. In any event, there is such a duty where the supervisory obligations in respect of the building work are specifically intended to avoid the occurrence of particularly dangerous types of errors on the part of the building contractor which are likely to arise.

(b) In this case the defendant was obliged, with respect to the protection of the tenant, to ensure that the damp-proofing was properly carried out. As a type of building work which is particularly risky, the architect was under a duty to take special care [references omitted]. The fact that the damp-proofing was not carried out properly was particularly likely to cause unexpected damage which could be significant to the property of those using the building.

(c) The liability of the architect is likewise not excluded by the fact that the defendant stated in his pleadings that the use of the storage rooms in question for commercial purposes was a breach of the planning regulations. It is not necessary to decide whether and in what conditions the protective scope of the defendant’s duty of care is limited by the fact that the storage of the machines was prohibited under the planning regulations and was therefore unlawful. For in these circumstances there is no justification for a restriction upon the defendant’s liability because the use of the rooms for storage was provided for under planning regulations and other local bye-laws. On the facts as given, it cannot make a difference whether the damage occurred to machines used for commercial purposes, the storage of which was not permitted, or to machines stored for other purposes, which were permitted. The decisive factor is rather that the rooms in question were not fit for the purpose which they were intended—as storage space.

(d) The liability is further not excluded because F Ltd may have occupied the rooms in question before they had been inspected in accordance with either the contract or the relevant building regulations. It is possible for liability based on the breach of a duty of care to be restricted where the activity in question has occurred without the knowledge or intention of the person subject to the duty. Such is not the case here. It is not alleged that the defendant was not in agreement with the occupation of the rooms or that he warned against it.

(e) The OLG was also right to hold that the plaintiff did not have to inform the defendant of the intention to store items intended for use in his business in the basement. The defendant must have anticipated the usage of the basement for these purposes.

3. The claim for compensation brought by F Ltd is restricted to the claim for so-called restitutio in integrum [references omitted]. The plaintiff claimed no more with his request for the recovery of the costs of repair and the costs of providing an expert report. The deliberations of the OLG concerning the contributory negligence of F Ltd contain no errors of law and there is no appeal against them.

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