The case:
A homeowner intends to remodel and modernize his house. To do this, he hires an architect to plan and supervise the construction.
To save costs, the homeowner employs "construction helpers". The owner pays his unskilled laborers 10.00 euros per hour in cash. However, he fails to properly register them with the employers' liability insurance association and to pay the required social security contributions. The architect was unaware of the use of undeclared labor.
The work of the construction laborers was inadequate. However, the property owner is not entitled to assert any warranty claims against the construction laborers due to violations of § 1 para. 2 no. 1 of the German Act to Combat Clandestine Employment (SchwarzArbG).
However, the homeowner believes that his architect is liable to him for damages with regard to the defects. After all, the architect did not supervise the construction workers sufficiently and could have prevented the defect.
The homeowner claims damages from the defendant architect for breach of duties under an architect's contract.
The court decision:
The Higher Regional Court rejects the home owner's claim.
The court first reiterates that the purpose of the Act to Combat Clandestine Employment is that neither the person working undeclared nor those who employ them deserve protection. This approach by the courts is intended to deter builders and contractors from engaging the services of undeclared workers, which is still widespread.
If the architect was unaware of the illegal employment of the construction workers, then according to § 242 BGB, it would constitute an impermissible exercise of rights if the building owner were now to assert warranty/damage claims against the gullibleThis is also incompatible with the general preventive purpose of the ban on undeclared work. Those who promote undeclared work are not worthy of protection as a whole.
Practical tip:
The OLG confirms the settled case law of the Federal Court of Justice (e.g. Federal Court of Justice judgment dated 10.04.2014, VII ZR 241/13), according to which anyone who commissions and has work performed "off the books" anddefects in this work, is left without any protection.
The client cannot circumvent this clear consequence of the Black Labor Court either by duly commissioning an architect to supervise the "black work". Even if the architect can be held responsible for a construction supervision error in this context, claims against the architect in good faith are excluded by reference to the Act to Combat Clandestine Employment.
The Higher Regional Court of Schleswig only explicitly ruled in favor of this outcome in the case that the architect was unaware that undeclared workers were being used. However, in view of the assessments of the Black Labor Court, it can be assumed that claims for damages against architects are also excluded if they knew about the use of undeclared labor. After all, there is no reason why the client should be in a better legal position in this case.
As a result, it must be emphasized once again that illegal employment has no place in the construction industry. In particular, property owners who use undeclared workers expose themselves to considerable risk. They lose all rights to make warranty claims against contractors and construction supervisors. If defects arise, they are always left to bear the costs of the damage.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.