Facts
The plaintiff Gischig had his welding workshop in Zurich expanded with a "workshop extension" in 1976/77. The defendant Fröhlich Flachdach AG carried out the insulation work for the flat roof. Around two months after completion, in mid-October 1977, water is said to have flowed in streams from the new ceiling. Gischig claims to have immediately notified all the companies involved in the construction. On November 4, an inspection took place, and on November 10, 1977, Gischig filed a written notice of defects with Fröhlich Flachdach AG.
In June 1979, Gischig sued Fröhlich Flachdach AG for damages of CHF 106,212.85 due to the leaky roof. The Commercial Court dismissed the claim on December 8, 1980.
Gischig appealed against this judgment, requesting that it be overturned and the claim be upheld or the matter be remanded to the lower court for the taking of evidence and a new decision.
Considerations
The Federal Supreme Court upheld the judgment of the Commercial Court. It stated that according to Art. 370 para. 3 CO, the client must notify defects immediately after discovery, otherwise the work is also deemed approved in this respect. The notification must be substantiated in a proper manner and made without delay after the discovery of the defect.
The Federal Supreme…