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Contractor ( english contractor ) is an economic entity , within the framework of a contract for the customer , the purchase of a business takes over.


Economic subjects that come into question as contractors are in particular companies , freelancers and the state with its subdivisions ( public administration , public companies , municipal companies ). For an order, the contractor can be not just a single economic entity, but also several ( consortium , working group ). Private households rarely act as contractors.

The colloquial use of the term by the contractor comprehensive than the law . Colloquially, the seller in the purchase contract (“ order ”), the broker , architects or commission agents can also be considered as contractors. Also Construction companies are considered contractors. The contractor is adjacent to the seller by the effect that the contractor only in the weeks or even months after an order power provide can. The reason for this is that the service cannot be stored ( building ), has very individual (order-related) features ( work of art ) or is too high a storage risk ( large industrial plants ). The seller , however, delivers step by step against payment by the buyer. Therefore , contract relationships are not based on sales law , but rather work contract , work delivery contract or service contract law.

The basis is the order placed by the client. For the order, action by the contractor in the interest of the client is essential. The contractor must therefore strictly adhere to the order-related instructions of the client when executing the order.

Legal issues

German contract law is regulated in Sections 662 to 674 BGB . The contractor is called the “agent” there. In accordance with Section 662 of the German Civil Code (BGB), by accepting the order, the customer undertakes to take care of the business transferred to him by the customer free of charge, although he is generally not allowed to transfer the execution to third parties ( Section 664 BGB). The contractor is obliged to provide information and accountability ( § 666 BGB), the client must, on request, make an advance payment for the expenses incurred by the contractor ( § 669 BGB), in addition he has to reimburse the contractor for the expenses incurred ( § 670 BGB). However, free of charge is not a mere unilateral courtesy on the part of the contractor, because a real obligation contract according to Section 311 (1) BGB is concluded. The client is obliged to a reasonable extent to safeguard the interests of the contractor in protecting him from avoidable damage . If the transfer of the order from the contractor to third parties is permitted, this can in particular take place in accordance with Section 664 Paragraph 1 Clause and 2 BGB, according to which the third party takes over the order in whole or in part on its own responsibility . The agent has to exercise the care required in the traffic when executing the order.

As soon as the client promises the contractor a remuneration , it is a management contract§ 611a , § 675 Paragraph 1 or § 631 BGB). The actually free order law can be applied analogously to paid orders (for the agency contract by reference in § 675 paragraph 1 BGB). In contract law, the contractor is called " entrepreneur ". Similar to the Sales Law - where according to § 363 BGB, the seller to transfer the burden of proof shall ensure the absence of defects of the purchased item - takes in contracts for work the contractor until the acceptance ( § 640 BGB), the burden of proving the absence of defects . According to Section 641 (1) of the German Civil Code (BGB), the contractor's claim for remuneration only becomes due when the work has been accepted by the client. Acceptance is the acceptance of the service provided by the contractor through transfer of ownership and the declaration that the client recognizes the service as being in accordance with the contract. The similarly classified building acceptance is regulated in the state building regulations.

The VOB / B applicable to construction work uses the term contractor, but does not offer a legal definition . Pursuant to Section 4 (2) VOB / B, the contractor must carry out the work under his own responsibility in accordance with the construction contract and observe the recognized rules of technology ( Latin Lege artis ) and the legal and official provisions. According to Section 9 (1) VOB / B, the contractor can terminate the contract if his client is in default of acceptance or default .

Incoming orders

The commercial contractors registered incoming orders as new orders , both a business (for the assessment of the economic situation of an individual company) and economic indicator (for the assessment of the future development of the gross domestic product ).


In Austria , the agent is obliged according to § 1009 ABGB to take care of the business in accordance with the order. If the contractor does not fulfill his contractual obligations, the client has the right according to § 1052 ABGB to refuse his consideration . The death of the client or agent usually ends the order (§ 1022 ABGB). The law of the client is regulated in Switzerland in a similar way to that in Germany (Art. 394 ff. OR ), but also for a fee and also includes employment contracts . Anyone who is officially appointed as a representative (e.g. as a public defender ), accepts orders on a commercial basis (e.g. doctors , architects , lawyers , credit institutions , trustees ) or has recommended themselves publicly for the procurement of orders, is required to immediately and expressly reject an order given to them , otherwise the contract is considered to be tacitly concluded. This does not change the fact that the order can be freely revoked at any time (Art. 404 OR).

Individual evidence

  1. Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, introduction before Section 662, marginal no. 2
  2. Kurt Schellhammer, law of obligations according to the basis of claims: including BGB General Part , 2014, p. 354
  3. BGHZ 16, 265, 267
  4. BGB-RGRK, The Civil Code , Volume 2 / Part 4, 1978, § 664 Rn. 2
  5. BGHZ 30, 40, 46
  6. Kurt Schellhammer, Law of Obligations according to the Basis of Claims: including BGB General Part , 2014, p. 355
  7. ^ BGH, judgment of October 23, 2008 - VII ZR 64/07
  8. Hans-Joachim Tiete, Legal Lexicon for Crafts Enterprises , 1983, p. 9