The BGH based its ruling on the following facts: the defendant manufactured high-quality garden furniture and wooden fences. He used the plaintiff's products for the coating process since 1987. In the beginning, the varnishing took place in Denmark. In the wake of problems that occurred in 1988 when using varnish of other producers for the coating process, the defendant asked the plaintiff for advice. Early in 1989, she asked for further advice, when she had decided to build an own varnishing plant, which she subsequently acquired for 500.000 DEM. Later on, the defendant's products were refined by using — amongst others — plaintiff's varnish. As complaints about the quality of the varnish arose, an expert examined the varnishing process. In 1992 he concluded that the process recommended by the plaintiff was unfit. The plaintiff sued for payment of the delivery of varnish; the defendant invoked set-off with damages and filed a counter-claim.
At the heart of the dispute is the following question: under which requirements does an independent advice contract come into existence, that is next to the seller's secondary duties to advise as a result of a sales contract? Which period of limitation is therefore applicable: the general one of § 195 BGB, or the shorter, sales-specific one in § 477 BGB? In this case, the BGH ruled in favour of a separate advice contract by arguing that this is justified in exceptional circumstances, i.e. if the activity of advice exceeds by far the scope of the regular secondary duties to advise in sales contracts, taking into account the content, scope, intensity and significance of the advice for the buyer. The authors of the following case notes analyse this decision from the Austrian and the Spanish point of view.European Review of Private Law