Court:

OGH 24. 11. 1998 1 Ob 184/98k EvBl 1999/76 = ecolex 1999/199 (Rabl) = RdW 1999, 202

Topics:

Damage

Articles:

§ 1, PHG

Facts:

The defendant had given samples of lacquer to the plaintiff for an interior decoration made of wood. With this lacquer the plaintiff furnished his own samples which he showed to and were accepted by a buyer. Thereafter the plaintiff, to fulfil his buyer's order, bought the whole package of lacquers including the respectable lacquer and started working pieces of wood with it. When a top coat was put on the wood, dull strain were noticeable and the pieces were not glossy as the samples and the wood changed its form.

The plaintiff claimed compensation because the paint had been flawed (condition and caused damage to the pieces of wood). The plaintiff stated that he had to pay for costs of repair. Additionally the buyer had reduced the price agreed on because even after the plaintiff's repair the wood's surface was still imperfect.

Legal Questions:

Contractual warranty for the damage to the product itself versus product liability for consequential damages.

Decision:

There was no liability according to the PHG. Compensation can be imposed for damages caused by death or personal injuries and damage to property not including damage to the defective product itself. In the case at hand the plaintiff had claimed compensation for the defective product itself. Furthermore purely economic damages and loss of profit were not to be compensated according to the PHG. Also, one cannot speak of property damage if the product was not yet finished but a new product was still to be fabricated (here in a defective way). Damage to property and product defect exclude one other.