Damage assessment in case of defective work performance

Following the jurisdiction of the Federal Court of Justice, the Higher Regional Court of Frankfurt, ruled on 31 August 2018 that the purchaser retains the plant and does not have the defect remedied. The damage can be assessed with the remuneration shares attributable to the defective performance on the basis of the remuneration agreed for the plant. In the opinion of the court, an estimate is also permissible if the remuneration components, on which accounted the defective performance, are not disclosed. The OLG follows the more recent case law of the BGH according to which in these cases the purchaser either has the possibility to measure his financial loss or alternatively can limit himself to the consideration of the defective plant itself in comparison to the defect-free plant. (OLG Frankfurt a. M., decision of 20183108 - Case number.: 13 U 191/16)