Contractor's duty to warn
The contractor's duty to warn the client where the client's material or instruction is evidently unsuitable; otherwise the contractor is liable for the failure (section 1168a ABGB).
Under section 1168a ABGB the contractor is liable where the works fail because of evidently unsuitable material supplied by the client or an evidently incorrect instruction, unless it warned the client. As an expert it must check plans, preliminary works and material specifications for recognisable defects.
If the contractor omits the warning that is called for, it may be exposed to warranty and damages claims. If it warns in time and the client nevertheless insists on its specification, liability can shift; a consequence partly caused by the client leads to contributory negligence.
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Legal basis
Statutory texts for orientation; the version in force at the relevant time prevails.
This explanation gives a general overview of Austrian law and does not replace advice in an individual case. The specific circumstances of your construction project are always decisive.
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Contract for work
A contract under which the contractor undertakes to produce a specific result (the works) in return for payment (sections 1165 ff ABGB).
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Damages
Fault-based compensation for loss caused by a defect or breach of duty; on construction projects often alongside warranty (sections 1293 et seq., 933a ABGB).
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Contributory negligence
The injured party's own fault in causing the loss; it leads to a proportionate reduction of the compensation claim (section 1304 ABGB).
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Warranty
The statutory, fault-independent liability of the contractor for defects that the works already had at handover (sections 922 et seq. of the Austrian Civil Code, ABGB).
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