German Federal Court of Justice changes case law on suspension of the limitation period in independent evidentiary proceedings

In independent evidentiary proceedings, the plaintiff petitioned for an expert opinion to determine defects in a building. An expert identified several defects. The plaintiff commented on one of the defects but did not comment on the other. The independent evidentiary proceedings were continued only with regard to the first defect. Subsequently, it was questionable at what time the suspension of the limitation period for the other defect ended.

When does the suspension of the limitation period end in case of several defects?

The Stuttgart Higher Regional Court (“OLG”) was of the opinion that the evidentiary proceedings and thus the suspension of the statute of limitations with regard to several defects ends independently with their respective factual settlement.

The BGH now ruled that it was preferable to wait until the independent evidentiary proceedings were uniformly concluded before the limitation period recommenced. According to the BGH, the reference to the point in time of the evidentiary proceedings’ conclusion results from the wording of Art. 204 (2) sentence 1 BGB (German Civil Code). Accordingly, the suspension of the limitation period should end six months after the “end of the proceedings”. For reasons of legal certainty, the wording should be closely followed when interpreting statutes of limitation. According to the BGH, the evidentiary proceedings must therefore be factually completed entirely. For the assessment of the factual completion, the end of the entire taking of evidence is decisive.

Previously, the BGH had been of the opinion that the suspension of the limitation period with regard to several defects ends independently with their respective factual settlement. Now the BGH has changed its case law on the suspension of the limitation period in independent evidentiary proceedings, which has been in force since 1992.

Landmark BGH ruling for private construction law: No more premature limitation of individual defects

For construction law practice, this decision is an extremely relevant milestone in case law. The BGH ruling now gives plaintiffs sufficient opportunity and the necessary security to take action against all defects in extensive construction projects without having to fear premature limitation of individual claims.