Flat-rate contract
The flat-rate contract (also flat rate contract ) represents a specific type, as in the building contract , the compensation is calculated for the construction work.
A public contracting authority generally awards construction works at unit prices. In suitable cases , he can also award construction work with a flat-rate contract ( Section 4 (1) No. 2 VOB / A ).
A flat rate can also be agreed without the VOB / B being included in whole or in part.
Unit price contract
While in the unit price contract, the usual variant of the service contract, prices are agreed for certain services according to size, weight or number of items ( for example: "0.74 euros per square meter of wall surface" for painting work), the flat-rate contract provides for a flat rate ( for example: "12,427.30 Euros for all interiors ”) for the same service. As a result, the building contractor bears the calculation risk for flat-rate contracts.
Flat-rate contract
A list of services , which precisely describes the services to be provided , often serves as the basis for drawing up a flat-rate contract . If the services cannot be meaningfully described or if the client reserves the right to change the method of execution, the flat-rate contract is an unsuitable form of contract.
agreement
In the individual construction contract, the VOB / B , which contains provisions for the flat-rate contract in Section 2, Paragraph 7, always applies to public clients and to private clients if it has been agreed . There it is basically regulated that even if the scope of the service has changed compared to the service description (for example because the dimensions carried out differ from the dimensions estimated in the planning), the remuneration remains unchanged. However, this does not apply if the service performed deviates so significantly from the contractually stipulated service that it is unreasonable to reasonably adhere to the lump sum. There is no fixed demarcation here, the relevance threshold is determined by case law in each individual case. As a guide, it can be assumed that a significant deviation is assumed to be around 20% or more. It is different, however, if the work carried out has changed compared to the regulation in the construction contract because the work involved in carrying out the work has changed due to a change in the construction draft or other instructions by the client (example: the excavation should not, as originally intended, be the construction site are temporarily stored, but are driven off) or additional services are requested afterwards. In that case, according to Section 2 Paragraph 7 No. 2 VOB / B, the regulations in Section 2 Paragraph 4, 5 and 6 VOB / B also apply to minor deviations in the construction work .
Particular difficulties arise for the assessment of the remuneration if the construction work is not carried out in full, but the contract is terminated prematurely by termination by one of the contracting parties. Then the part of the remuneration must be determined that is attributable to the part carried out. The Federal Court of Justice has decided: According to the principles developed by the Senate for billing a canceled flat-rate contract, the contractor must explain the services provided and distinguish them from the part that has not been carried out. The amount of the remuneration for the services provided is to be calculated according to the ratio of the value of the partial service provided to the value of the total service owed under the flat-rate contract. The contractor must therefore state the relationship between the service provided and the agreed overall service and the price for the partial services at a flat rate. If there are no indications from the time before the conclusion of the contract for the evaluation of the services provided or are not productive, the contractor must subsequently explain in detail how the services provided are to be evaluated while maintaining the price level.
species
There are two types of flat-rate contracts, the detailed flat-rate contract and the global flat-rate contract.
Detailed flat-rate contract
In the case of a detailed flat-rate contract, the services to be provided are described in detail and a flat-rate agreed.
Global flat-rate contract
In the case of a 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, as far as this is reasonable (see Section 2 (7) No. 1 Sentence 2 VOB / B, Section 313 BGB).
swell
- ^ A b Horst Locher , The private construction law, 7th edition, Verlag CH Beck, Munich 2005, paragraph 101.
- ↑ BGH, judgment of July 4, 2002 - VII ZR 103/01 , see page 4, section III. 1.
