Facts
In this case, the defendant (Y.) constructed an office building for the plaintiff (X.) between 1972 and 1977. The execution of the metal facade, the glazing, and the sun blinds was subcontracted to M. AG. From spring 1978 onwards, defects in the sun blinds became apparent.
The plaintiff sued the defendant for remediation, alternatively for removal of the blinds or reimbursement of the costs for their self-removal, as well as reimbursement of the contract price, subsidiarily for reduction. The Civil Court of the Canton of Basel-City upheld the claim to the extent of CHF 968,954.95 plus interest.
Considerations
The Federal Supreme Court states that the contractor is liable for the work performance of the subcontractor as his vicarious agent. A release from liability under Art. 369 CO requires an express warning by the client, which did not occur here.
Furthermore, the client generally has the choice between rescission, reduction, or remediation. As the defendant has forfeited his right to remediation by neither he nor his subcontractor offering timely and proper rectification of the defects, the upholding of the…