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  #21  
Old 11.02.2018, 14:27
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Re: Threat of poursuite from subcontracting company

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I do not really understand how someone can be forced to pay again, if the contract was with company x and company x was paid in full?
Agency contract. See Code of Obligations linked above.

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Also very interested to learn how that can be avoided!
- Do not use a GU but employ all works man yourself.
- Have in the contract that you will pay the bills of the works man
- Have in the contract that you will only pay the GU once the works man are paid.
- Pay through an escrow.
- Do not pay full, keep part of the price back until all is settled.

Be aware, a lien can also be put on the property when the owner has no direct obligation to pay the outstanding amount. This can be in cases such as:
- A former owner did not pay all contractors.
- A tenant employed a tradesmen which did work on the property and was not paid.
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  #22  
Old 11.02.2018, 15:28
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Re: Threat of poursuite from subcontracting company

Thanks

employing the works yourself also avoids paying any commissions / margins to the general constructor
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  #23  
Old 11.02.2018, 15:35
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Re: Threat of poursuite from subcontracting company

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- A former owner did not pay all contractors.
If there is a Pfandrecht (of any sort) against a property, is it required that this is listed in the Grundbuch? Or it possible that a new owner might be hit with a surprise?
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  #24  
Old 11.02.2018, 15:37
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Re: Threat of poursuite from subcontracting company

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If there is a Pfandrecht (of any sort) against a property, is it required that this is listed in the Grundbuch? Or it possible that a new owner might be hit with a surprise?
Probably not in the Grundbuch. I had a clause in the contract that the previous owner assured he had no outstanding bills/taxes and anything that would come related to his ownership still would have to be paid by him.
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Old 11.02.2018, 15:57
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Re: Threat of poursuite from subcontracting company

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If there is a Pfandrecht (of any sort) against a property, is it required that this is listed in the Grundbuch? Or it possible that a new owner might be hit with a surprise?
As far as I understood it is listed in the Grundbuch (property register). But there is a time limit of 4 months from the end of work until when a works man can still put a lien on the property.

So even if nothing is listed in the Grundbuch one might still be in for a suprise.

This is maybe less of a problem in case you buy an older house (except major work like a new roof or new windows were recently done) but when you buy a new already built house or apartment from a GU.
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  #26  
Old 11.02.2018, 20:19
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Re: Threat of poursuite from subcontracting company

A this is Switzerland thread if I ever saw one. Astounding.

I hope your guys pays up!
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  #27  
Old 11.02.2018, 21:41
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Re: Threat of poursuite from subcontracting company

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Agency contract. See Code of Obligations linked above.



- Do not use a GU but employ all works man yourself.
- Have in the contract that you will pay the bills of the works man
- Have in the contract that you will only pay the GU once the works man are paid.
- Pay through an escrow.
- Do not pay full, keep part of the price back until all is settled.

Be aware, a lien can also be put on the property when the owner has no direct obligation to pay the outstanding amount. This can be in cases such as:
- A former owner did not pay all contractors.
- A tenant employed a tradesmen which did work on the property and was not paid.
Could I push you one more thought swissinus: our contract makes no mention subcontractors would be used. Is this relevant at all ?
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  #28  
Old 12.02.2018, 00:33
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Re: Threat of poursuite from subcontracting company

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This just isnít true: Please refrain from writing such things (maybe based off how other counties work) when you donít know what youíre talking about.

It can happen that you legally have to pay twice for work, if the sub-contractor doesnít get paid for work. This nearly happened to me and also to many others I know about.
I'm afraid it is true what i said and I'd never quote another countries law as applying to Switzerland. Also, I do know what I'm talking about. I simply would not have written it if I had no experience or knowledge. besides no two cases are ever the same.

As I said I do have experience of precisely this on one of our apartments into which we put a new kitchen and bathrooms - a job of over CHF 100,000 of which the contractor only paid about CHF 25,000 to the SC (we later discovered). I also had no idea the work was sub contracted.

I won in the Local court, lost in the cantonal one but won at the TF. I did not have to pay the sub contractor as I'd had no dealings with him, nor did i sign any receipts. I also won all my costs. I felt sorry for the SC as it nearly bankrupted him, but it was not my fault (nor his) and I'd paid everything.

Maybe in yours and other cases it was different, I don't know, perhaps you engaged with the SC? But in my case I won!
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  #29  
Old 12.02.2018, 10:30
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Re: Threat of poursuite from subcontracting company

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As I said I do have experience of precisely this on one of our apartments into which we put a new kitchen and bathrooms - a job of over CHF 100,000 of which the contractor only paid about CHF 25,000 to the SC (we later discovered). I also had no idea the work was sub contracted.

I won in the Local court, lost in the cantonal one but won at the TF. I did not have to pay the sub contractor as I'd had no dealings with him, nor did i sign any receipts. I also won all my costs. I felt sorry for the SC as it nearly bankrupted him, but it was not my fault (nor his) and I'd paid everything.
Was the court case about the lien or the open debt?
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  #30  
Old 12.02.2018, 10:39
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Re: Threat of poursuite from subcontracting company

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Was the court case about the lien or the open debt?
It never became a lien. They first asked us to pay which we did not as we had paid the contractor. Next came the registered letter and warning and finally the "processo esecutivo". We went to a reconciliation hearing but again we refused to pay and the company then started legal proceedings against us.

We made stage payments to the contractor against his invoice but at no time did we sign work sheets, delivery notes or completion notes. As the ST could not prove he had done the work for us due to a lack of these notes, the case was found in our favour at the TF.

Had we signed work sheets etc the outcome would have been very different. As I said no two cases are the same and it very much depends on the individual circumstances.
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  #31  
Old 12.02.2018, 11:02
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Re: Threat of poursuite from subcontracting company

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It never became a lien. They first asked us to pay which we did not as we had paid the contractor. Next came the registered letter and warning and finally the "processo esecutivo". We went to a reconciliation hearing but again we refused to pay and the company then started legal proceedings against us.
So he never even tried to put a lien on the property? That was either a costly mistake, he was to late to do it, or he was not eligible to put a lien on the property.

Do you have the TF/BGE case number at hand ?
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  #32  
Old 12.02.2018, 11:22
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Re: Threat of poursuite from subcontracting company

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So he never even tried to put a lien on the property? That was either a costly mistake, he was to late to do it, or he was not eligible to put a lien on the property.

Do you have the TF/BGE case number at hand ?
I think you first have to get a court order to put a lien on the property and that's why he started the legal process.

I don't have the case number and I'm currently in South Africa. I'll try and get it when i come back.
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  #33  
Old 12.02.2018, 11:36
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Re: Threat of poursuite from subcontracting company

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It can happen that you legally have to pay twice for work, if the sub-contractor doesnít get paid for work. This nearly happened to me and also to many others I know about.
We had to pay twice for work too (7000 CHF) - and we got a lawyer involved too - and all because someone at the Gemeinde was a bit slow in sending someone a bill.
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  #34  
Old 12.02.2018, 12:28
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Re: Threat of poursuite from subcontracting company

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Hi all,

So after a day on the phone yo are as usual all correct and this astonishing situation is not only true, but common apparently. Iím now trying to get Hold of the contractor to express in clear terms that as Iíve given him all the payment I order him to pay the SC. We are likely to need to pay someone extra (separate from this) to fit the missing brackets but our priority is to avoid the lien.
Personally, I think this is suboptimal. You can avoid a lien by providing a deposit for the disputed amount even after the subcontractor called on the courts.

I think you'd be much better off by withholding a generous sum (relative to the work pending) and have the contractor pay the balance, say 80%, of what you already paid.

Otherwise you have zero leverage on the subcontractor to complete his work.
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Old 12.02.2018, 12:43
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Re: Threat of poursuite from subcontracting company

This thread is giving me the heebeejeebees.

(She says as she feeds a GU proposal for upcoming renovations into the shredder, on second thought maybe the old kitchen isn't all that bad...)
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  #36  
Old 12.02.2018, 20:52
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Re: Threat of poursuite from subcontracting company

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Personally, I think this is suboptimal. You can avoid a lien by providing a deposit for the disputed amount even after the subcontractor called on the courts.

I think you'd be much better off by withholding a generous sum (relative to the work pending) and have the contractor pay the balance, say 80%, of what you already paid.

Otherwise you have zero leverage on the subcontractor to complete his work.
We may do that Urs, but we have areas of expertise in life, like everyone, and this is not one of them. Our insurance jurisdique have confirmed the coverage and our lawyer was today talking to both the contractor and subcontractor I will get an update tomorrow.

To boot we just noticed one of the glass doors has a long crack in it at the top you can only see when the door is at a certain angle so we are about to make a set of very angry contractors even more annoyed!
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Old 13.02.2018, 02:17
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Re: Threat of poursuite from subcontracting company

Even more reason to withhold a fair portion of the payments otherwise due, taking into account the time limits applicable to your complaints.
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  #38  
Old 14.02.2018, 21:08
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Re: Threat of poursuite from subcontracting company

So itís progressing. Following lawyer letters the contractor and subcontractor are working things out. Now Iíd like to ask an extension of the question if EF has the patience.

One of the doors, which is almost all glass was installed late and it was the only one we didnít inspect. A week after the install my wife noticed a crack and itís a big crack near the top. On visiting today the contractor looked at it and implied that as this was after install it might be my home insurance to cover. I rejected of course but is there anything in swiss law on this ? One week after install without us using it there is a large crack. I would say product fault but if itís my demand and their rejection, can I call upon anything official ? There is gurantee on the windows of 10 years but I donít know the exacts about this kind of damage.
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  #39  
Old 14.02.2018, 21:28
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Re: Threat of poursuite from subcontracting company

My approach would be to make it clear that this is so obviously a fault in the installation or product that there is no need for discussion.

Something along the lines of "Are you really telling me that you're happy with this fitting and you think it's reasonable?".

But the law is also pretty clear - a crack in a window clearly substantially reduces its value and fitness for purpose, so the seller has not fulfilled their side of the contract:

Quote:
Art. 197 B. Seller's obligations / III. Warranty of quality and fitness / 1. Object of the warranty / a. In general


III. Warranty of quality and fitness

1. Object of the warranty

a. In general

1The seller is liable to the buyer for any breach of warranty of quality and for any defects that would materially or legally negate or substantially reduce the value of the object or its fitness for the designated purpose.

2 He is liable even if he was not aware of the defects.
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Old 15.02.2018, 11:19
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Re: Threat of poursuite from subcontracting company

This is about a "Werkvertrag", a contract on a product that's to be created and delivered, its particular aspects are regulated by Civil Code ß363-379. Civil code ß370 says inspection must happen immediately and visible defects, unless complained about during inspection, are deemed accepted. Hidden defects must be complained about within 7 days after detection.

Now, I would expect the contractor to accept a complaint within a few days but even then you shouldn't delay.

ß370 "1. Once the completed work has been expressly or tacitly approved by the customer, the contractor is released from all liability save in respect of defects which could not have been discovered on acceptance and normal inspection or were deliberately concealed by the contractor.

2. Tacit approval is presumed where the customer omits to inspect the work and give notice of defects as provided by law.

3. Where defects come to light only subsequently, the customer must notify the contractor as soon as he becomes aware of them, failing which the work is deemed to have been approved even in respect of such defects."
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