Facts
M. AG (the client) concluded a construction contract with W. AG (the contractor) and a separate engineering contract with G. AG (the engineering firm) for the installation of an intermediate floor in an existing building. During the assembly of the concrete elements, the intermediate floor under construction collapsed, without causing any personal injury or property damage. The contractor had to rebuild the work before acceptance, which led to significant additional costs, for which it held the engineering firm responsible.
The client refused to assign its claims under the engineering contract to the contractor. Thereupon, the contractor filed a lawsuit against the engineering firm with the Commercial Court of the Canton of Bern for reimbursement of the additional costs.
Considerations
The Federal Supreme Court concluded that the unlawfulness under Art. 41 CO was not given, as no code of conduct was violated that is intended to protect against pure financial losses. Although the contractor had no proprietary claim to the unfinished construction work, it had a claim for remuneration against the client under the construction contract. Since the engineering firm was considered an auxiliary person of the client, the contractor could claim compensation for the destruction of the work under Art. 188 para. 5 SIA Standard 118, insofar as this was…