On Jan. 1, 2024, the Building Quality Assurance Act (Wkb) will take effect. This law brings a number of changes to the Civil Code in the area of the building contract.
Various publications on the Internet claim that the introduction of the Wkb will significantly worsen the contractor’s position. For example, as soon as the client has a complaint about the work done, the contractor would always have to prove that good work was indeed done. This would constitute a so-called “reversal of burden of proof.” Not the client would have to prove that there was a defect, but the contractor would have to prove that there was no defect.
These assertions are based on a persistent misunderstanding. The Wkb does not lead to a reversal of the burden of proof. It does, however, increase the contractor’s liability. What exactly is the situation?
He who demands proves
In civil law (of which construction law is a part), the basic principle applies: the one who asserts something must prove his assertion, if it is disputed by the other party with reasons. Popularly said sometimes: “he who demands proves”. In construction, this means that if the client states (claims) that the contractor did not perform the work properly or that there is a defect and the contractor denies this, it is up to the client to prove that and why the contractor did not do what he should have done according to the contract. This applies both in the situation where the client requires the contractor to still fulfill his obligations (proceed to repair) and in the situation where the client claims damages.
This legal premise does not change with the introduction of the Wkb. Neither do most of the defenses that the contractor can raise against a claim of the principal as referred to above change. For example, the contractor can dispute the existence of a defect or argue that the client did not complain in time, the client’s claim is time-barred, the client was warned by him in time, the client did not pay or did not pay in time, etc.
But what does change?
Currently, the law provides that the contractor is no longer liable after completion of the work for defects that the client should and could have discovered upon completion. So this means that if the client comes forward with a complaint about the work after delivery has taken place, the contractor can point out that he is no longer liable because the complaint in question already existed during delivery and the client should only have seen and reported the defect.
Liability after completion
After entry into force of the Wkb, this situation will be changed in the sense that the contractor will remain liable for defects that were not discovered upon delivery of the work “unless these defects cannot be attributed to the contractor”. The contractor can then no longer claim that the starting point is that he is no longer liable because the delivery has taken place, but will be allowed to argue and, if necessary, prove that the defects are not attributable to him. The defect in question would then have to have been caused by facts and circumstances entirely beyond the contractor’s control.
What remains unchanged is that it is up to the client to establish and prove that there is a defect arising from the contractor’s failure to fulfill an obligation under the contract.
