Retention
The withholding (or security deposit , in Austria financial retention ) is a subjective right of the creditor , a part of the owed compensation in terms of possible remedial costs withhold .
Work contract
Legal regulation
The entrepreneur must provide the customer with the work free of material defects and defects of title ( Section 633 (1) BGB ).
Although the provision of a defect-free item is also owed in sales contract law ( Section 433, Paragraph 1, Clause 2 BGB), there is only a special statutory regulation of retention in contract law. According to Section 641, Paragraph 3 of the German Civil Code (BGB), the customer can generally refuse twice the costs required to remedy the defect in order to persuade the entrepreneur to remedy the defect (so-called pressure surcharge ).
If the customer invokes his right of retention in accordance with Section 641 (3) of the German Civil Code (BGB), he must explain the existence of the alleged defects and, if necessary, prove them. The purchaser owes the payment of the withholding only step by step against the removal of the defects.
Since the remuneration is only to be paid upon acceptance of the work, i.e. only after its completion ( § 641 Paragraph 1 BGB), the entrepreneur can, conversely, demand a security deposit from the customer for the remuneration due to him in accordance with § 648a BGB and thus reduce the risk of insolvency that results from his obligation to provide advance payment .
The contracting parties are only entitled to these rights in the event of mutual claims arising from the same contractual relationship.
Contractual agreement
In deviation from Section 641 of the German Civil Code, it can be agreed between the entrepreneur and the customer that the full remuneration is only due after the warranty period has expired and that the customer can withhold a certain part of the remuneration until then ( Section 17 VOB / B ).
Corresponding provisions in general terms and conditions are subject to judicial content control in accordance with Section 307 of the German Civil Code (BGB) and must not lead to the purchaser being over-secured.
Commercial transactions
With the commercial right of retention according to § 369 HGB , merchants can also assert a right of retention due to claims due from other mutual contracts, but only on movable items.
Replacement of the retention
In the terms of payment it can be agreed that the security deposit can be replaced by an absolute, unlimited guarantee .
Individual evidence
- ↑ Bernd Knipp: § 648a Bauhandwerkersicherung BGB.Kommentar.de, as of December 21, 2015
- ↑ OLG Dusseldorf, judgment of 11 March 2005, ref .: 22 U 99/04 para. 46
- ↑ Nicolai Ritter: retentions for collateral BGB.Kommentar.de, § 641 Due date for payment, as of December 21, 2015
- ↑ Anna Rehfeldt: Rights of retention vs. Claims for defects February 27, 2015
