Limitation of Actions Consultation - Law Commission

10.155 In relation to hidden defects, Article 638 of the BGB provides for prescription
periods of one year for work on land, five years for buildings, and six months in all
other cases 494
of works contracts. 495
Time begins to run from the formal act of
acceptance. This causes serious problems due to the total absence of a
discoverability requirement combined with the relative shortness of the period.
10.156 The perceived injustices of this have driven the courts to interpret Article 638
narrowly. 496
However, this can produce highly arbitrary contrasts between the six
month period under Article 638 and the general thirty year period. 497
10.157 The courts attempt to draw the line by means of a distinction between damages
pertaining to the work itself 498
and consequential loss. 499
The former come under
Article 638, as well as consequential loss that is “closely related” to the defective
performance. 500
However this test has proved wholly uncertain in practice. 501
10.158 The periods prescribed by the BGB are, however, not mandatory. Under the VOB,
they are generally reduced to two years, although there are special rules for
particular types of construction. 502
In addition, reduction of the statutory
prescription periods by agreement is permitted. 503
(2) Actions in Tort
10.159 Claims for delict are barred in three years from the time at which the injured party
has knowledge of the injury and of the identity of the person bound to make
compensation, and without that knowledge, in thirty years from the doing of the
act. 504
10.160 The requirement of knowledge has caused difficulties. The courts have been
unwilling to allow a plaintiff to rely on grossly negligent ignorance. Thus case law
494 For instance, the construction of a ship.
495 Problems are caused by the distinctions between these. The courts have tended to try to use
the longer period but this has depended upon awkward interpretations. See BGHZ 37, 341
(344), BGH NJW 1980, 2081.
496 Thus, fraudulent defects come under the thirty year prescription period and not Art 638.
The courts have tended to relax the requirements of fraudulent behaviour.
497 Thus the long prescription period is available where a defective bottling plant destroys the
bottles it is supposed to fill; the short period applies to the damages caused by a shelf that
was poorly installed and thus falls down. (OLG Köln, MDR 1974, 227; BGH JZ 1979,
569ff. See R Zimmermann in E H Hondius (ed), Extinctive Prescription, p 186.
498 Mangelschäden.
499 Mangelsfolgeschäden.
500 Eg BGHZ 37, 341 (343); BGHZ 46, 238 (239).
501 “The uncertainty as to how borderline cases will be decided could hardly be greater - in an
area of law where legal certainty is more important than nearly anywhere else!”: R
Zimmermann in E H Hondius (ed), Extinctive Prescription, p 186.
502 Thus for works undertaken for the highways department, the period is five years for bridges,
four years for complete main roads, and two years for other works.
503 Art 23(5) AGBG.
504 Art 852(1) BGB.
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