Decision of the principal to alternatively assert the general claim for damages and the warranty claim for a defective work

Facts

In this case, Hänzi, a plastering contractor, concluded a contract for work with the construction consortium Büchelring, represented by the architect Bucher, for plastering work in a building in Adliswil. After the completion of the work, Hänzi invoiced the balance of CHF 14,139.37 to Bucher. However, Bucher contested this amount, claiming that certain work had been poorly executed, which represented a loss of CHF 7,809.42. Hänzi therefore brought an action for payment against Bucher, while the latter filed a counterclaim.

Considerations

The Federal Tribunal considered that the contractor's liability for defects in the work is governed by Arts. 367 to 371 CO. These provisions constitute a special warranty regime that excludes the alternative recourse to the general claim for damages under Art. 97 CO. Indeed, Art. 368 CO transforms the contractor's performance obligation into certain warranty rights (rescission, reduction, repair and compensation for consequential damage from the defect) when the principal has fulfilled the legal conditions (examination of the work and complaint within the time limits). Thus, the cantonal court only had to examine the…