In a recent landmark decision, the Supreme Court clarified the question – hitherto disputed in legal scholarship – of whether a general contractor within a chain of vicarious agents (Erfüllungsgehilfen) can take direct recourse, for example against a sub-subcontractor (so-called „leapfrog recourse“). In summary, according to the Supreme Court this is not possible. Under § 1313 ABGB a contractor can therefore take recourse only against its own agent, but not against the agent of its agent (OGH 30 June 2022, 4 Ob 99/22w).
In the facts underlying the decision of the highest court, the apartment owners of a property (hereinafter: the client) concluded a contract for work with the plaintiff as contractor and property developer for the refurbishment of the residential building. The plaintiff passed the construction work on to another construction company (hereinafter: the subcontractor), which in turn availed itself of further construction companies, including the defendant (as „sub-subcontractor“), for the performance of individual trades. The defendant performed its works and remedial works defectively, as a result of which two of the clients/apartment owners suffered damage due to the ingress of moisture.
In prior proceedings, two of the clients asserted this damage against the plaintiff, i.e. the contractor. Because of the defective works, the plaintiff was ordered by final judgment to compensate the refurbishment costs. The plaintiff contractor now sought, by way of recourse under § 1313 second sentence ABGB, the refurbishment costs it had had to compensate in the prior proceedings from the defendant sub-subcontractor in respect of the construction and execution defects the latter had caused. In summary, it argued that it was irrelevant that the parties to the dispute had not been in a direct contractual relationship in the construction project, because under this provision recourse could be taken by way of the chain of vicarious agents.
The Supreme Court disagreed with the plaintiff’s legal view, denied the asserted claim and gave, in summary, the following reasons for its decision:
§ 1313 second sentence ABGB governs the right of recourse under § 1313 ABGB on account of a breach in the internal relationship between the principal and the agent connected to him by a contractual relationship. In this respect it is also undisputed under the previous case law of the Supreme Court that a contracting party (e.g. a general contractor) in a so-called chain of vicarious agents is also liable for the fault of the further vicarious agent (sub-subcontractor) used by its own vicarious agent. This liability of (e.g.) a general contractor in a chain of vicarious agents is based on the fact that it also avails itself of the „sub-subcontractor“ to pursue its interests vis-à-vis the client. An agent (and thus also a „sub-subcontractor“) itself, however, is – leaving aside the case of a contract with protective effects in favour of third parties – not liable in contract vis-à-vis the client, which is offset by the (contractual) liability of the general contractor for the conduct of the agent.
In view of the fact that, for contractual claims, the client must turn to its contracting party (e.g. the general contractor), it would, according to the Supreme Court, be an inconsistency in the statutory scheme if that contracting party (general contractor) in a chain of vicarious agents could choose whether to take recourse against its own contracting party (subcontractor) or against a further agent (sub-subcontractor).
