Facts
On July 23, 1983, Markus W. concluded an agreement with Erich S. for the acquisition of a single-family house, which S. was to construct as the general contractor for a lump-sum price of CHF 510,000. In the course of the construction work, the steep slope running along the western property boundary was also remodeled. On April 15, 1984, W. moved into the house with his family. Later, problems with the stability of the slope arose, whereupon W. filed complaints about defects.
On April 2, 1985, W. and his wife Brigitte concluded a publicly notarized purchase contract with S. for the acquisition of the property for the price of CHF 520,000 (including additional work). With regard to the warranty, it was agreed that S. would grant the buyer the same construction guarantees as to tradesmen, contractors, etc. and would assume warranty for work he had performed himself in accordance with the SIA regulations.
The buyers later filed a lawsuit against S. for the payment of CHF 78,919.20 for the remediation of the slope. The High Court dismissed the claim, whereupon the buyers appealed.
Considerations
The Federal Supreme Court states that the agreement of July 23, 1983 is to be regarded as a valid contract for work for the construction of the house, even though the property purchase contract was not publicly notarized until later. The buyers' warranty claims are therefore to be assessed according to the provisions of the contract for work and not according to the rules of sales law.
The Federal Supreme Court sets aside the judgment of the High Court and remands the case for further clarification, in particular whether the parties…