Service maintenance is usually based on mutual agreement between the parties. The contractual relationship is based on the fact that contracts must be hold. In case a person does not fulfill his contractual obligation, the injured party has the right to compensation for breach of contract.
Compensation for breach of contract
In the contractual relationship, the claimant must only show that the counterparty has violated the contractual obligation. The repairman may, in turn, be released from liability by showing that the contract is not violated or that the damage has been caused by a matter which does not include in the responsibility of the repairman. On the other hand, direct damages with causal relationship to the breach usually falls within the responsibility of the repairer.
The liability for damages does not, as a rule, extend to unforeseeable and distant damages. Exceptionally, however, the contractual relationship may concern so-called “strict liability” under a special law, such as the Environmental Damage Act or Product Liability Act.
Following carefully what has been agreed, helps to avoid liability for damages
The main thing is to find out what the parties have agreed on the repair and sanctioning of the non-compliance. If the repair is made incorrectly causing damage to the device (for example, the total breaking of the device to be repaired), damages liability usually actualizes. In a situation where the machine is repaired without further consent of the customer (and the value of the device rises with “maintenance” / basic improvement and cannot be removed), the liability issues will be resolved in accordance with the prevailing practice of the industry and the parties’ agreement. On the other hand, if a party contributes to the damage, it may result, for example, settling an unreasonable contract clause or even lapsing.
Warning and disclosure can be a part of diligence
In most cases, the machine repairer is not responsible for the tasks that the customer explicitly excludes from the assignment, as long as the customer is aware of the importance of exclusion. In other words, an expert must ensure, before the customer excludes certain measures, that he has correctly understood the consequences of not including them. That way the exclusion will be valid and the repairer has been sufficiently careful in taking into account customer’s interest. In the first place, the repairer must take into account the interest of the customer on his own initiative in order to prove that he has acted with sufficient care.
An expert’s obligation to provide information is considered to include a communication on other necessary measures and statements, as well as an obligation to warn about the risks involved.
Special expertise is expected from a specialist
The main rule is that the more skilled and experienced the expert is, the more diligence and knowhow can be required from him. On the other hand, drawing line between a careful and negligent repairer can be difficult, which can result in costly litigation in court.