Construction target
The construction work to be performed according to the construction contract is referred to as the construction target (sometimes also written construction target ) . This service is defined by the construction contract, in particular by the attached service description with service specification or the service description with service program (functional service description).
It is important for the construction management to recognize what is covered by the construction target, i.e. H. which service is to be provided according to the contract and which service must also be commissioned by the client .
A basic distinction can be made between two ways of defining the construction target: The construction target can be defined as a goal to be achieved, whereby it is up to the contractor how to achieve this goal (functional description of services) or how it can be done in practice detailed requirements for achieving the goal are given, mostly by extensive bills . As a rule, there are mixed forms between these basic options.
Construction target determination in the case of unclear or incomplete specifications
Determining the construction target is always difficult if the individual services are not precisely defined in the construction contract and the specification of services, if the specification of services and the contract are incomplete or unclear.
In the case of unclear or incomplete service specifications, the case law helps itself by interpreting the construction contract with special consideration of the service specifications. It depends on the view of the public and the objective recipient horizon of the person who received the service description from the other part. In other words, when the service description has been drawn up by the customer, the question is asked how the group of providers of construction services that could be considered for the project should have understood the contract and the service specification. First of all, the wording and, if there are gaps, the circumstances of the individual case, including the specific conditions of the building, should be important.
Construction target and construction is
Differs from the Bausoll construction is , so the actual performance decreases, it is either a deficiency or to additional services rendered. The building is defective if the actual construction lags behind the target. Additional services are available if the actual construction exceeds the target construction. If the requirements are met, an additional fee is to be paid for this. If a goal to be achieved by the contract cannot be achieved with the means listed in the specification of services, then the work, as the construction target is also defined by the success assumed in the contract, even in the case of detailed specifications, is defective if only the program of The service schedule is processed, the effort going beyond the planned services can also be remunerated within the scope of the no -business costs .
The determination of the construction target can be particularly problematic for the contractor in the case of unclear service descriptions in flat-rate contracts , since the contractor bears the calculation risk in these contracts.
Construction target and liability for success
The concept of the construction target, invented by construction practice, which does not appear in either the BGB or the VOB / B , focuses very much on which individual technical services are to be carried out. From this point of view, the frequently used argumentation suggests that all of these individual services were properly performed, i.e. the construction target was fully met and the contractual service was thus free from material defects. It is overlooked that the contract for work promises success (work success ). The service must a) have the agreed quality ( § 633 BGB) and b) in the case of the VOB contract also comply with the recognized rules of technology ( § 13 VOB / B). The question must therefore rather be whether this owed success was achieved. If the owed success has not been achieved, the work is defective and may have to be replaced or improved. Only then does the question arise whether success could have been achieved with the agreed partial services. If this is clearly denied, the work is defective, but the contractor can assert his claim to payment of the costs of failure against the customer's claims for rectification of defects (which, however, will usually be significantly lower than the subsequent rectification costs).
The difference becomes clear in the not uncommon cases in which compliance with and completion of the construction target leads straight to a defect. It is difficult to find a meaningful solution with the concept of the construction target. If, on the other hand, it is correctly based on the fact that the promised success did not occur, i.e. that there is a defect, then, according to Section 13 (3) VOB / B, you only need to ask whether the contractor has reported his concerns in good time. If he does not, he is liable for the defects because he did not achieve the promised success.
swell
- ↑ BGH , Az.VII ZR 376/00, judgment of February 28, 2002, with further evidence on the highest court rulings , judgment of February 28, 2002 on openjur.de , accessed on March 6, 2012
- ↑ a b BGHZ 139, 244 = NJW 1998, 3707
- ↑ Horst Locher , The private building law , 7th edition, Verlag CH Beck, Munich 2005, ISBN 3406485235 , paragraph 101
