No cure for a defective third-party notice by way of uncontested admission

The background to this decision was a property developer's action against a tradesman commissioned to lay parquet flooring. The defendant had agreed with the purchaser of an apartment to lay oiled bamboo parquet flooring in deviation from the building description, with the purchaser bearing the additional costs. After moving in, the purchaser complained about a defect in the parquet flooring (shrinkage). In a first legal dispute, the plaintiff had sued the purchaser for payment of the remaining purchase price from the property development contract, against which the purchaser defended himself by complaining of defects, particularly in the parquet flooring. The plaintiff had announced the dispute to the defendant in those proceedings; the statement of the announcement of the dispute did not contain any information on the content and status of the proceedings, nor were any attachments included. Shortly afterwards, the defendant joined the dispute on the plaintiff's side. Seven years later, after the plaintiff had reached a settlement with the purchaser on the basis of an expert opinion, it made a claim against the defendant for the amount of the reduction which, according to a statement in the settlement, was based on defects in the parquet flooring. Among other objections, the defendant raised the plea of the statute of limitations.

The courts of the lower instances had considered the defects in the notice of dispute, such as the lack of information on the status of the legal dispute, to be cured because the defendant had not complained about these defects in the preliminary proceedings. In contrast, the Federal Court of Justice dismissed the action in its entirety in its ruling of 12.06.2025 (case no. VII ZR 14/24).

Any claim for damages was time-barred, as the notice of third-party notice issued without a limitation period was (and remained) ineffective due to deficiencies in its content. The third-party notice was not sufficiently specific within the meaning of Section 73 ZPO. In particular, the reason for the third-party notice, i.e. the legal relationship from which the recourse claims are to arise, and the situation of the legal dispute must be stated. The party giving notice of dispute must be able to recognize which claim the party giving notice of dispute believes to have against him.

The fact that the defendant had joined the earlier legal dispute did not alter the invalidity of the third-party notice.

The defects were not cured by the fact that the defendant did not object to them at the latest at the next hearing of the previous proceedings. Section 295 (1) ZPO was not relevant here, as the intervener was not a party to the preliminary proceedings. There is also no oral hearing that takes place "due to" the third-party notice; rather, the third-party notice has no significance for the preliminary proceedings. Furthermore, it would only be examined in the subsequent proceedings whether the third-party notice complied with the content requirements. Furthermore, the intervener is not legally able to object to the invalidity of the third-party notice in the preliminary proceedings. Furthermore, the recipient of the third-party notice is free to join the preliminary proceedings; if he refrains from doing so, he must not be placed in a worse position than the intervener. Therefore, it must be possible to challenge the invalidity of the third-party notice and thus the limitation period for the first time in the subsequent proceedings.

The judgment confirms with gratifying clarity the importance of a careful and thoroughly substantiated third-party notice.