Solidary debtor compensation in flooring technology!

A nasty surprise for the floor installer!

There are legal situations in construction practice that can lead to an unpleasant surprise, especially if you believe that the claim for defects in your contract partner is obsolete, but must then establish that a Non-contractors can still claim against the floor installer due to defects.

This result may be surprising, but it is rooted in the provision in § 426 BGB. This provision applies regardless of whether the contractual relationship is based on a VOB service contract or a BGB service contract.


The starting situation for joint and several debtor settlement is the following 3-person situation. This fact is not only fictitious, but common client practice. A public developer finds fault with parquet floors laid seven years ago, which, according to a private expert opinion, are said to be significantly defective. Due to the expiration of the warranty period, the floor installer is no longer responsible for defects due to the statute of limitations for warranty claims after five years. The public developer then steps in against the architect who was commissioned at the time. These warranty claims against the architect are not yet time-barred due to the contractual relationship between the public developer and the architect. The client submits a compensation claim of well over €100,000.00 against the architect. The architect’s liability insurance pays this sum and now steps in against the floor installer and demands full compensation for the damage. The question that arises here is whether the architect has a legal claim against the floor installer.

No contractual relationship

First of all, you must realize that there is no contractual relationship between the architect and the floor installer. The floor installer is only in a contractual relationship with the public developer. Therefore, a non-contractual partner in the person of the architect makes valid claims against the floor installer. The answer should be given in advance so as not to trouble the reader unnecessarily. The surprising result is that the architect can hire the floor installer. This is because the architect and floor installer are jointly and severally liable to the client. The client only has a contractual relationship with the architect and a contractual relationship with the floor installer. These legal relationships are independent of each other, but there is one between the floor installer and the architect, which is not contractually bound to each other legal relationship, as they are jointly and severally liable to the client. This legal relationship is not based on a contract, but arises from the law. According to established jurisprudence, a joint and several obligation is assumed between the contractor and the architect who supervises the construction work, if the contractor defaults on his manufacturing obligations. and the architect’s supervisory duties and these breaches of duty lead to a defect in the construction.

joint and several liability

It just needs to be briefly pointed out that such a joint and several obligation is also assumed in legal practice to exist between an entrepreneur who provides the service in advance (storage warehouse) and a subsequent company (floor installer), since the entrepreneurs have made a contractual commitment. jointly and severally for the same service. This becomes apparent when the floor covering is laid on top of a screed that is obviously incorrectly applied. As a supplementary performance, the screed owes acceptance of the floor and the screed as well as a complete rearrangement of the screed and floor. The floor installer is also responsible for registering the floor and re-laying it. With regard to the recording and rearrangement of the floor, both are jointly and severally liable. If the floor cannot be removed without damaging the screed, you are jointly and severally liable for both services (screed and floor).

legal consequence

A joint and several debtor therefore has a claim for compensation against the other joint and several debtor in accordance with section 426, subsection 1, in the German Civil Code.

In our case, it follows that the architect relied on by the public developer can assert a compensation claim against the floor installer in accordance with § 426, subsection 1, in the German Civil Code. This does not change the limitation period for the public developer’s warranty claim against the floor installer. The only result of this is that the floor installer is not liable to the public developer.

However, this does not have the legal consequence that the floor installer could invoke the limitation period in the statutory obligation between the floor installer and the architect. The internal relationship between the two joint and several debtors becomes obsolete for the public developer’s deficiency claim not touched.

No defense of the statute of limitations

This means that one joint and several debtor cannot invoke a statute of limitations against the other joint and several debtor, as the joint and several debtor can do in the external relationship with its contractual partner. In the present case, this means that the floor installer cannot object to the architect against the limitation period which he has asserted against his contractual partner, the public developer.

The background for the equalization provisions according to § 426 BGB is that it should be prevented that the arbitrariness of the creditor alone determines which co-debtor must make the sacrifice necessary for satisfaction. In the internal relationship between joint and several debtors, privileges granted to a joint and several debtor should therefore play no legal role.

limitation of compensation claims

This compensation claim from one co-debtor against the other co-debtor falls due within three years in accordance with section 426, subsection based on knowledge of the reason for the claim. In this context, one must realize that the architect can make use of the floor layer for more than thirteen years. This result is also surprising.

How does this happen?

In the case of an agreement between the client and the architect on a full architectural contract including service phase 9 (property management and documentation), the architect is liable to the client for 10 or 9 years. Because his responsibility and thus his guarantee only begins after the entrepreneur’s guarantee period has expired, i.e. after five years in the case of a BGB contract and 4 years in the case of a VOB contract.

Only after the entrepreneur’s warranty period has expired does his own limitation period begin to run for five years, so that architects who have agreed service phase 9 with the client are liable to the client for 10 or 9 years. If deficiencies do not occur until the tenth or ninth year, the client can still claim that the architect is his contractual partner for construction supervision errors. If there are execution errors, the architect can still make a claim against the contractor for execution errors that have only been brought to attention in the tenth or ninth year according to § 426 subsection 1 BGB, as the claim for compensation according to § 426 subsection 1 BGB expires. three years after becoming aware of the cause of the claim. It is a very long time. It is therefore advisable that the floor installer does not destroy documents for the building project immediately after the statutory storage period, but keeps them for a longer period of time so that his documents can be used as a basis for defense in the event of a claim. In practice, architects therefore try to avoid agreeing on service phase 9 in order to avoid such a long liability towards the client.

inner balance

In the end, it still needs to be answered to what extent the responsible architect and the floor planer are internally liable to each other. In the case of deficiencies, it is agreed that the quota is based on the degree of causation of the joint and several debtors. According to § 254 BGB, it must be considered to what extent the deficiency and damage are mainly caused by one or the other co-debtor.

Decisive criterion: Who set the cause?

It depends on the individual causal contributions. The basic rule has emerged that the person who caused the deficiency must be more responsible than the person whose contribution has less direct influence. In our example, this means that the person who has only breached his supervisory duty must be less liable than the person who laid the flooring. This means that the floor installer must assume a high share of responsibility in the internal relationship with the architect responsible for the construction, since it is assumed in the consistent Supreme Court judgment that the floor installer is actually responsible for the cause, since he has presented defective flooring, and he is responsible for success.


In summary, it can be stated that joint and several debtor compensation is of great importance to those entitled to compensation, if they are only partially responsible and can demand compensation from another joint and several debtor.

Basically, one can conclude that the joint debtor settlement for the floor installer poses a not inconsiderable danger despite the limitation period against his entrepreneur also within the framework of the joint debtor settlement of a Non-contractors in order to be able to make a claim.

Carsten Seeger

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