Liability for performance assistants in a contract

If you instruct a business, that business owes you the agreed service. If an employee, subcontractor or other assistant makes a mistake while carrying out the work, an important question follows: should you claim against the assistant or against your contracting party?

Section 1313a of the Austrian General Civil Code, the ABGB, generally provides a clear answer within the contractual relationship. A person who owes a service is liable to the other party for the fault of the legal representative and of the persons used to perform the service as if it were their own fault. The customer is therefore not required to reconstruct the company’s internal division of work.

This article explains when a person qualifies as a performance assistant, what section 1313a ABGB does and does not cover, how subcontractors fit into the chain and which documents help to establish the claim.

Section 1313a ABGB is based on an existing duty to perform. The debtor owes the creditor a service and uses another person to provide it. If that person breaches a duty while performing the service and causes loss to the contracting party, the conduct is attributed to the debtor.

The rule does not require proof that the debtor personally chose or supervised the assistant badly. The relevant point is that the person acted within the debtor’s sphere of contractual performance. The customer should receive the agreed service without taking on the internal coordination of employees and commissioned businesses.

This contractual attribution must be distinguished from general liability in tort. The initial assessment should therefore identify not only the loss, but also the contract, the promised service and the precise step at which the problem occurred.

A person who has concluded a works contract, service contract or another agreement for performance will generally direct claims for defective performance against their own contracting party. That remains the case even when an employee or subcontractor carried out the specific work.

For example, a construction company may commission installation work from a subcontractor. A customer who contracted with the construction company does not normally have to pursue the installer simply because the installer caused the defect. Within the contract, the construction company is generally liable for the assistant’s fault as for its own.

The internal right of recourse is a separate issue. The main contractor may examine its own claims against the subcontractor. That internal chain does not normally change the customer’s position against the party with whom the customer contracted.

A performance assistant acts to fulfil an existing contractual duty of the debtor. The decisive factor is the factual connection with the service owed. The label used in the contract and the assistant’s legal form are not conclusive by themselves.

The agent referred to in section 1315 ABGB belongs to the field of liability in tort. That rule concerns damage which may occur outside a direct contractual performance. Its requirements and function are therefore not interchangeable with section 1313a.

In practice, divide the facts into three questions: What service was promised? Who performed it? Did the error occur during that performance or during conduct unrelated to the order? Only then can the appropriate legal basis be identified.

A subcontractor may be a performance assistant of the main contractor if the subcontractor was engaged to provide the service which the main contractor owes its customer. This is particularly relevant to divided works and technical services. Calling the business a partner does not automatically remove the performance connection.

For the customer, the contractual chain is central. The main contract, offer, specification, variations and acceptance records show what was promised. Invoices and site records can also establish which business carried out which part of the work.

Section 1313a does not attribute every error made by any business to the debtor. The particular assignment must be connected with the debtor’s contractual performance. An independent ancillary service or an incident wholly outside the order requires a separate assessment.

Whether damages can be claimed depends, in addition to attribution, on breach, causation and a legally relevant loss. In the case of defective works, necessary repair or replacement costs, consequential loss or a proven loss of use may be relevant. Dissatisfaction with the result alone is not necessarily compensable damage.

Each item should be documented separately. For a defective service, keep the contract, description of the defect, photographs, expert material, repair offers and invoices together. A delay claim also needs a clear timeline and a connection between the delay and the disadvantage suffered.

The topic page on property damage and reduction in value helps organise repair, value and further financial losses. The damage documents checklist is useful for preparing the evidence.

Section 1313a primarily regulates the debtor’s liability to the contracting party. It does not automatically give the customer a separate contractual claim against an employee or subcontractor. Frequently, the contract exists only between the customer and the main contractor.

A separate claim may nevertheless arise on another legal basis, for example from a direct agreement, a breach of a duty in tort or particular protective effects of a contract. The requirements must be assessed on the facts. Merely participating in the work is not enough.

In practical terms, it is usually sensible to address the complete and documented complaint to the contracting party first. Describe the defect precisely, attach the relevant documents and ask for a clear response or remedy. Passing the customer between several businesses makes enforcement more difficult.

Start with the contract and every attachment. Add offers, specifications, variations, plans, minutes, invoices and payment records. Then arrange the correspondence by date and mark when the problem was first reported.

Photographs and videos should carry a date, location and short explanation. For technical defects, inspection reports or an expert opinion may show which work step was defective. Names and functions of the people involved help distinguish the performance chain from the contractual relationship.

The damage documentation check can structure the first collection of records. The topic page on evidence and negotiations provides further orientation.

A common mistake is to contact the subcontractor directly while leaving the contracting party outside the process. Another is the assumption that the contracting party is liable only if it personally made a mistake when selecting the assistant.

The contractual service is also often left undefined. Without a clear description of what was owed, it is difficult to decide whether the particular work step belonged to the performance. Notices of defect, requests to remedy and evidence of loss should not remain in an unstructured message chain.

Finally, warranty remedies and damages are mixed together. Remedy or price reduction follow different requirements from compensation for additional loss. Separating the issues makes it easier to choose the correct evidence and addressee.

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