Facts
The Federal Tribunal was seized with an appeal against a judgment of the Cantonal Tribunal of St. Gallen that had held the real estate expert [A.] liable towards the buyers [E.] and S. B. for the defects found in the house they had acquired. The facts are as follows: - In 1994, [A.], a renowned architect in the region, prepared an expert report on the property D. in C. at the mandate of the owners. This report did not mention any defects in the property. - In 1996, the owners transmitted this expert report to the potential buyers [E.] and S. B. The latter acquired the property on November 21, 1996. - Shortly after taking possession on March 1, 1997, the buyers noticed problems with the eaves. Mandated experts then identified defects concerning the roof construction, the eaves, the statics and the humidity in the basement. - On August 29, 1997, the buyers addressed a complaint for defects to [A.] and requested the establishment of evidence before the competent court. The experts mandated in this context essentially found the same defects as the private experts, in particular non-compliant execution of the carpentry work in the attic and in the basement as well as the insulation of the basement ceiling. The total cost of the repairs was estimated at CHF 63,900.-. - The buyers informed [A.] that they would hold him liable for the damages, in addition to the sellers and the architect who had renovated the house. [A.] refused any liability.Considerations
1. The Cantonal Tribunals rightly rejected an extracontractual liability of [A.], due to the lack of unlawful conduct on his part, since he had no legal obligation to protect the assets of third parties. They also correctly excluded A.'s liability on the basis of a contract with protective effect towards third parties. Such liability has indeed never been accepted so far in the case law. It would only be conceivable if the seller had entrusted the expertise to [A.] in agreement with the buyers and had presented him with this situation of common interests, which is not the case here. 2. Liability based on the trust created can, however, apply when there is an indirect relationship between the expert and the third party. It is not necessary for the expert to know the third party personally, as the risk of…