Defective workmanship (mangelhafte Handwerkerleistung) exists where the work carried out does not conform to the agreed specification or is not fit for its ordinary purpose. The central provision is § 633 BGB (Bürgerliches Gesetzbuch, German Civil Code), which governs the contract for work (Werkvertrag) between the client and the tradesperson and sets out when a work is deemed free of material defects (Sachmängel).
Whether leaking bathroom tiles, a crooked door fitting or a heating system that does not function properly: defects in tradespeople's work are among the most common disputes in contract law. The German Civil Code provides clients with a graduated system of rights in §§ 634 to 638 BGB, ranging from rectification to damages. Those who are familiar with this sequence avoid costly mistakes and significantly strengthen their position vis-à-vis the tradesperson.
What Constitutes a Defect in Law?
Under § 633 para. 2 BGB, a work is defective if it does not possess the agreed characteristics. Where no express agreement has been made, the decisive question is whether the work is fit for the purpose presupposed by the contract or, at the very least, for its ordinary use, and whether it exhibits a quality that is customary in works of the same kind and that the client can reasonably expect.
A defect (Mangel) therefore does not only arise in cases of obvious faults. Work that is technically functional but visually unsatisfactory may also be defective if it deviates from the generally recognised rules of technology (allgemein anerkannte Regel der Technik). Example: if a tiler lays floor covering without the required fall towards the drain, this constitutes a defect even if the tiles are visually flawless.
An incomplete performance, for example, 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 instance by means of photographs and a handover record (Übergabeprotokoll), in order to avoid subsequent disputes about the condition of the work.
The First Step: Demanding Subsequent Performance
Prior to all other rights comes subsequent performance (Nacherfüllung) under § 635 BGB. As a general rule, the client must first give the tradesperson the opportunity to remedy the defect before asserting further-reaching rights such as withdrawal (Rücktritt) or damages (Schadensersatz).
Under § 635 para. 1 BGB, the contractor may choose whether to remedy the defect or to produce a new, defect-free work. An exception applies only where subsequent performance would entail disproportionate costs or would be unreasonable for the client, for example, because the relationship of trust has been destroyed by serious breaches of duty.
Where the Tradesperson Fails to Rectify: Self-Help Remediation
If the deadline set passes without rectification, the client may have the defect remedied by a third party under § 637 BGB and claim reimbursement of the necessary costs from the original tradesperson. This so-called self-help remediation (Selbstvornahme) is a powerful remedy but should only be used after the deadline has elapsed without result.
Setting a deadline is exceptionally dispensed with under § 636 BGB where the contractor seriously and definitively refuses subsequent performance, or where special circumstances exist that justify immediate self-help remediation, for example, in the event of an acute risk arising from water damage.
Withdrawal or Reduction of the Contractor's Fee
If a deadline set also proves unsuccessful, or if subsequent performance has failed, the client may withdraw from the contract (Rücktritt) under § 634 No. 3 BGB in conjunction with § 636 BGB, or reduce the contractor's fee (Werklohn mindern). Withdrawal requires the contract to be unwound; amounts already paid must be reimbursed in exchange for return of the performance, which is practically difficult where work has already been installed.
In practice, reduction (Minderung) under § 638 BGB is usually the more practicable route. The contractor's fee is reduced in proportion to the extent to which the value of the work is diminished by the defect. Example: if the defective tile-laying cost 8,000 euros and the missing fall compensation reduces the value by 15 per cent, the client may deduct 1,200 euros from the contractor's fee.
Damages for Defective Workmanship
Where the defect causes additional loss, for example, water damage resulting from a leaking pipe, a claim for damages (Schadensersatz) under § 634 No. 4 BGB in conjunction with §§ 280, 281 BGB may arise. As a general rule, this requires that the tradesperson is responsible for the defect, i.e. acted negligently or intentionally.
The claim for damages covers not only the costs of remedying the defect but also consequential losses such as damaged furniture or necessary drying measures. Here too, the general rule applies: before asserting damages in lieu of performance (Schadensersatz statt der Leistung), a deadline for subsequent performance must as a general rule be set, unless this is exceptionally dispensed with.
Limitation Periods: How Long Can You Assert Defect Claims?
The limitation of defect claims (Verjährung von Mängelansprüchen) is governed by § 634a BGB. For works on a building (Bauwerk), the limitation period is five years from acceptance (Abnahme); for other works and services, such as repairs or maintenance work, a period of two years applies. For works without a specific rule, the standard 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 contractor's fee becomes due, the burden of proof for defects reverses, and the limitation period begins to run.
Prior to acceptance, the tradesperson must prove that their work is free of defects. After acceptance, the burden of proof shifts to the client, who must then demonstrate that the defect already existed at the time of handover and did not arise only at a later stage.
- Inspect the work carefully before acceptance and list any apparent defects in writing. - Refuse acceptance in the event of material defects, or declare acceptance subject to reservations. - Have an acceptance record (Abnahmeprotokoll) signed that contains all identified defects.