Warranty in Spite of Unreported (“Black”) Work

Especially on (private) construction, it is often perceived that the contractor has persons working illegally.  In German, this is (ofiicially and colloqually as well) phrazed as "schwarz arbeiten" or "Schwarzarbeit". The Federal Supreme Court had to decide if the contractor still has his warranty rights. It passed its judgment on April 4, 2008 (re: VII ZR 42/07 and 140/07). N.B. “Black labor (Schwarzarbeit)” is to be understood here not as somebody working with a work permit but subjecting this income to taxation.


The constructor went through all courts to have his way to receive warranty for an incorrectly constructed house. The illegal workers did not see any liability on their side. They considered the contract in total to be null and void because it was illegal. The lower courts agreed with crafters and referred to voidness of the contract (§138 BGB).

The Bundesgerichtshof dismissed all previous judgments of the lower courts because the black laborers cannot refer to the unlawfulness of the contracts. The special interest of the house builders in the contractual warranty claims to remove the defects is self-evident. It is therefore inequitable (§242 BGB) to let the handcrafters get away with the damages they leave for their “no-invoice deal”.

Published on the old CMS: 2008/7/3
Read on the old CMS till November 2008: 2,463 reads

Additional information