Subsoil risk

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With geological risk is known in the construction industry , the risk of unpredictable, from the building of outgoing effects and difficulties.

Definition by standard

Realization of the subsoil risk is in accordance with DIN 4020: 2010-12 (geotechnical investigations for structural purposes - supplementary regulations to DIN EN 1997-2: 2010-10), Section A 1.5.3.17 (previously Section 3.5 of DIN 4020 ) when this definition is met: "Subsoil
risk : an unavoidable residual risk inherent in the nature of the matter, which, when the subsoil is used, can lead to unforeseeable effects or difficulties, e.g. building damage or construction delays, although the person who is responsible for the Provides, has fully complied with his obligation to examine and describe the subsoil and groundwater conditions in accordance with the rules of technology, and although the contractor has complied with his own examination and notification obligation ".

A large number of subsoil exploration and description standards regulate the proper and professional determination of the soil and water conditions to be expected. These are detailed in Section 2 of all ATV DIN 18300 to 18326 of VOB Part C. The general standard of VOB Part C, the ATV DIN 18299, also contains essential specifications for the subsoil and hydrogeology. According to DIN 18299, he must in particular state the “soil conditions, the subsoil and its load-bearing capacity as well as the results of soil examinations” in the service description. Therefore, the architect owes the assessment of the building site in his draft planning. If he does not take into account the subsoil risk or does not take sufficient account of it, the architect is liable for the damage according to case law.

practice

The term subsoil risk is of considerable importance in (legal) construction practice . After the statutory model of the building contract right (after the meantime unanimous opinion in the case-law) of the building, a current supplied from the contracting material in the meaning of § 645 (1) BGB and § 4. 3 and § 13. 3 VOB / B . The Federal Court of Justice made this clear again with its judgment of January 28, 2016. At the same time, the BGH ended the "eternal" dispute of different opinions on the importance and responsibility in connection with the building site and mountains. He has made it clear that the building site is provided by the client and therefore the client has to bear the consequences of undetectable problems in connection with "his" building site.

The contractor can therefore, in cases in which the subsoil risk has an impact on the service owed or on the circumstances of the provision of the service owed, be released from its obligation to perform under the contract for work or, depending on the contract design, assert additional payment claims. This follows from the provisions of § 13 Paragraph 3 i. V. m. Section 4 (3) (obligation to notify) of VOB / B, which accordingly also apply to defects within the framework of Section 4 (7) VOB / B that occur before acceptance.

Measured against the definition given above, however, there is only a real realization of the subsoil risk in exceptional cases, since an exploration, investigation and description of the subsoil, including all of the ingredients contained therein, is often carried out by the builder or client in accordance with the rules of technology (mostly for cost reasons) is not commissioned or there are execution errors. In many cases, an incomplete description and an execution error, which can already begin with the choice of construction equipment, come together. In this respect, the causal contributions must then be weighed up and, in particular, the "business-as-usual costs" must be determined. The building ground investigation is of particular importance for the planning architect or engineer: If he does not make the building owner unmistakably and verifiably aware of the need for a thorough building ground investigation and description, he is liable for the often very high follow-up costs in the realization of building ground risks. VOB Part C is of particular importance for resolving disputes in connection with the building site, including groundwater and contamination. This must be made the contractual basis by public clients (Section 8 VOB / A ). In all civil engineering regulations of ATV DIN 18300 with 18325 there are corresponding balanced regulations.

Differentiation from systemic risk

The system risk is to be distinguished from the subsoil risk : This is realized if, despite a subsoil investigation and description in accordance with the generally recognized rules of technology , as well as the conformity of the subsoil encountered with the subsoil described and despite technically correct construction, damage or defects still occur, because system-related none Building can arise.

Individual evidence

  1. ↑ cf. BGH IBR 2008, 164; Higher Regional Court Koblenz IBR 2006, 573; OLG Bamberg IBR 2003, 555
  2. ↑ Soil report. In: bodengutachten.de. October 27, 2014, accessed October 27, 2014 .
  3. ↑ File number I ZR 60/14 in NZBau 2016, 283; BGH, judgment of January 28, 2016, Az .: I ZR 60/14

Up-to-date summary: Englert, Klaus, Soil Risk: Chimera or Reality in (Civil) Construction ?, NZBau 2016, 131; all earlier statements by various authors are outdated by the case law of the BGH and are at best of scientific value.

literature

  • Klaus Englert et al .: Handbook of Building Ground and Civil Engineering Law , 5th edition 2016, Werner Verlag
  • Conrad Boley, Klaus Englert, et al .: Construction Law Pocket Book, Special Construction Process Civil Engineering, Technical Explanations - Legal Solutions: Pipe jacking, HDD, pipeline construction, tunnel, sewer and landfill construction, water retention, jet grouting, sheet piling, soil stabilization, demolition and demolition work, Ordnance problem , 1st edition 2011, Verlag Ernst & Sohn, Berlin
  • Klaus Englert, Karlheinz Bauer: Legal questions on the building site , 2nd edition 1991, Werner Verlag
  • Boisseree, Fuchs: Handbuch des Baunachbarrechts , 1st edition 2006, Werner Verlag
  • Lange, Ingo: Subsoil liability and subsoil risk , building law. Series of publications, Volume 34, Werner Verlag, 1997
  • Bosse, Jörn: The subsoil risk in building contracts , LIT Verlag Münster, 2005
  • Fitterer, Daniel: Systemic Risk and Obligation to Success in Building Law , Lexxion Publishing House, 2006
  • Markus Vogelheim: “The doctrine of 'subsoil risk': A 'supra-legal' legal figure”, Berlin 2013, ISBN 978-3869652368 .