Construction contract (Germany)

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The construction contract is a contract for work and services between the client (purchaser) and the contractor ( entrepreneur ) for the production , restoration , demolition or conversion of a building , an outdoor facility or part of it.

General

This can be the creation of a completely new building ( turnkey construction ), conversions , renovation work or individual services (e.g. shell construction , bricklaying, painting, sanitary facilities, electrical installation, heating construction). Contractors for services from individual trades are often craft businesses. Building contractors who provide extensive construction work partly themselves, partly by commissioning other companies ( subcontractors ) are also referred to as general contractors .

Demarcation

The construction contract must be distinguished from the construction supervision contract and the property developer contract . The architect does not provide any construction work within the framework of the architect contract, but planning and construction supervision services.

Legal regulations for construction contracts

Contract type

Since January 1, 2018, the construction contract has been a legally standardized, special type of work contract under German law of obligations . For him, §§ 650a to 650h BGB apply in addition to the general provisions of the law on contracts for work and services ( §§ 631 to 650 BGB). In the case of consumer construction contracts, further regulations must be observed ( §§ 650i to 650n BGB).

shape

According to German law, there are no formal requirements for the conclusion of a construction contract , so that it can also be concluded verbally or through conclusive behavior (Konkludenz). This is different only if the building contract forms a unit with the sale of a property ( developer or property purchase agreement ), then it requires notarial certification .

The consumer building contract requires acc. Section 650i (2) BGB in text form.

Obligations of the parties

The main obligation of the entrepreneur is the defect-free production of the work ( §§ 631 and 633 BGB). The service owed should be specified as precisely as possible, for example by referring to a building description , building plans or a list of services .

The main obligation of the customer is to pay the fee. If an agreement has not been made on this and a free service is not expected, the usual remuneration is deemed to have been agreed ( § 632 BGB).

The purchaser is obliged to accept the work produced free of defects ( Section 640 Paragraph 1 Sentence 1 BGB). The acceptance cannot be refused due to insignificant defects (Section 640 (1) sentence 2 BGB). The wages are due upon acceptance of the work ( § 641 BGB). Under certain circumstances, however, advance payments may be owed beforehand (according to § 632a BGB or by agreement).

According to the law, the entrepreneur can demand security from the customer for the wages owed ( §§ 648 and 648a BGB).

Conversely, it is often also agreed that the entrepreneur has to provide the customer with security for the contractual execution of the service and / or for the fulfillment of warranty claims.

Performance disruptions

If there is a construction defect , the customer can refuse to pay an appropriate part of the remuneration after acceptance until the defect has been remedied (right of retention), namely in the amount of twice the costs required to remedy the defect (Section 641 (3) BGB).

Furthermore, in the event of a defect, the customer has the rights specified in § 634 BGB:

  • He can demand supplementary performance ( § 635 BGB), i.e. at the option of the entrepreneur, removal of the defect or new manufacture.
  • After the unsuccessful expiry of a reasonable period set by the entrepreneur for subsequent performance, he can remedy the defect himself (or through another entrepreneur) and demand reimbursement of the expenses necessary for this ( Section 637 BGB).
  • Under certain conditions he can withdraw from the contract ( §§ 636, 323 and 326 Paragraph 5 BGB) or reduce the remuneration ( § 638 BGB).
  • Under certain conditions, he can demand damages ( §§ 636, 280, 281, 283, 311a BGB) or reimbursement of wasted expenses ( § 284 BGB).

For the limitation of claims for defects, § 634a BGB applies .

Entrepreneurship forms

Depending on the scope of the contract of the contracted entrepreneur, a distinction must be made between the following types of entrepreneurship:

  • Main contractor: Takes part of the construction work (activity) and performs essential parts in their own companies, and he also can subcontractors - including subcontractors called - offer
  • General contractor : takes over the entire construction work for a BV and carries out essential parts in-house
  • General contractor : takes over the entire construction work, but does not carry out any work in your own company
  • General contractor : takes over the entire construction and planning work and carries out essential parts in-house
  • Total contractor : Takes over the entire construction and planning services, but does not carry out any services in your own company

Forms of payment, types of prices

A distinction must be made depending on the price agreement:

  • Unit price contract : The remuneration is calculated from the unit price for the respective partial service (e.g. 1 m³ of concrete) multiplied by the amount carried out. The service actually performed is determined by measurements from the construction plans or, alternatively, on the property.
  • Detailed flat-rate contract: The services to be provided are described in detail and a flat-rate fee is agreed
  • Global flat-rate contract: The services to be provided are described in a result-oriented manner (functional tender) and a flat rate is agreed. In the case of flat-rate contracts, the entrepreneur bears the mass risk, insofar as this is reasonable (see Section 2 (7) VOB / B, Section 242 BGB)
  • Cost reimbursement contract: The remuneration is based on evidence of the expenses. No longer in use today, anti-competitive.
  • Management contract (hourly wage contract) : The remuneration is based on agreed rates for the actual expenditure of personnel and machine hours as well as material. (A contract can include direct work as well as direct work (attached) in combination with other remuneration systems)
  • GMP contract ( guaranteed maximum price ): Through jointly optimized planning and execution, this GMP should be undercut in a cooperative manner. The saved costs are divided accordingly between the partners (client and contractor).
  • PPP contract : the public client commissions the company to plan, finance, build and operate the structure over a longer period (typically 15 to 25 years). Payment is made in monthly or annual installments.

Services not provided for are to be paid for separately ( Section 2 (6) VOB / B).

Terms of contract

In construction contracts, the contractual obligations are often regulated in detail in addition to or deviating from the BGB by special contractual conditions, which as general terms and conditions ( § 305 BGB) are subject to content control by the courts ( §§ 307 to 309 BGB).

VOB

Contract conditions often agreed in construction contracts are the “ General Contractual Conditions for the Execution of Construction Works ” ( VOB / B ).

The Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB) published the revised VOB / A Section 2 and Section 3 as well as the partially revised regulations of Section 1 of the VOB / A and the VOB / B in the Federal Gazette.

When the ordinance on the modernization of public procurement law came into force on April 18, 2016, Sections 2 and 3 of VOB / A came into force.

The VOB / B are part of the “ German procurement and contract committee for construction services ” (DVA) published “ procurement and contract regulations for construction services ” (VOB), which has been renamed since the new version in 2002 and was previously known as “ Verdingungsordnung für Construction work "(VOB). Members of the DVA are representatives of the public sector (federal, state, municipal umbrella organizations) as clients of public construction services and umbrella organizations of contractors in the field of public construction contracts.

Public clients are obliged to base their construction contracts on the VOB / B. When awarding the contract, you must observe the “ General Provisions for the Award of Construction Services ” (VOB / A).

International construction contract conditions

In the international construction industry, special construction contract conditions, mostly based on Anglo-Saxon roots, such as the FIDIC contract models, are common. These contracts of the “Fédération Internationale des Ingenieurs Conseils” show in some cases considerable differences to the VOB / B contract in terms of structure, structure and legal background. FIDIC currently sells four contracts: The Red Book , Yellow Book , Silver Book and the Green Book . In the course of globalization and advancing eastward expansion of the EU, these contractual terms will become more and more important.

literature

Web links

Individual evidence

  1. ↑ Article 1 No. 25 of the law of April 28, 2017 ( Federal Law Gazette I p. 969, 972 ), officially justified in: Draft of a law to reform construction contract law and to change liability for defects under commercial law ( BT-Drs. 18/8486 )
  2. ↑ VOB. Retrieved June 21, 2017 .