Facts
Quiba AG entrusted Diasond AG with bentonite grout and gel injection works around an excavation for the construction of a commercial building in Zurich-Oerlikon. Diasond AG invoiced 1,545.2 m³ of injected grout at a unit price of CHF 101, for a total amount of CHF 156,065.20. Quiba AG contested part of the invoice, considering that the quantity of grout used was too high. Diasond AG then brought an action for payment of the disputed amount. The Commercial Court of the Canton of Zurich partially upheld Diasond AG's claim, finding that the justified quantity of grout was 1,171.8 m³. Diasond AG appealed this judgment to the Federal Tribunal.Considerations
1. According to Art. 367(1) CO, the client must examine the work as soon as possible and inform the contractor of any defects found. This provision concerns defects affecting the quality of the work. A lack of diligence on the part of the contractor that does not affect the condition of the work, but only results in excessive work or excessive consumption of materials, does not constitute a defect within the meaning of this provision. 2. When the price of the work has not been precisely fixed in advance, the client may contest the contractor's invoice at any time and claim that the latter did not act with the required diligence. The…