Dismissal of the recourse action of company A. SA against architect X.

Facts

In 1985, the principal Y. entrusted the development of the plans to architect X. and the engineering work to company A. SA. In 1986, the contract with X. was terminated. Waterproofing problems appeared in the foundations in 1987. In 1992, the principal opened an action against A. SA, which then called X. in warranty. It was only in 1996 that the principal and A. SA learned that X.'s plans were defective and had contributed to the waterproofing problems. A. SA's insurance indemnified the principal in 1999 and assigned its recourse claim against X. to A. SA in 2001. A. SA then brought an action for payment against X.

Considerations

The Federal Tribunal ruled that the principal's action against architect X. was time-barred and lapsed, as the five-year limitation period under Art. 371(2) CO had expired at the latest in 1991, well before the defects in the plans were revealed in 1996. As the principal was unable to give notice of the defects to X. before the expiry of the deadline, its warranty rights were extinguished.

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