Partial service
A partial performance occurs when only part of the legal sense divisible performance is provided.
General
If certain services are actually divisible, such as in the case of an aggregate , then the question arises of how to deal with partial services.
Legal issues
According to § 266 BGB , no debtor is entitled to partial performance without a special contractual agreement . If a partial service is nevertheless provided, the obligee has the right to reject it. It this does not fall into default of acceptance , but can the debtor by means of a reminder within the meaning of § 286 para. 1 BGB in default of payment put. The debtor must then offer the entire service in the form set out in § 294 to § 297 BGB and can only cause the obligee to default in acceptance. In most cases, a so-called actual offer is required for this.
If the debtor has unjustifiably performed part of the performance that the obligee has accepted as fulfillment , the latter is entitled to secondary claims , in particular to compensation . According to § 280 Paragraph 1, 3 BGB, § 281 BGB, the obligee can, after he has set the debtor a deadline for complete fulfillment and this has elapsed unsuccessfully, to claim damages instead of performance . Compensation for damages instead of the entire performance , the so-called large compensation , can only be claimed by the obligee according to Section 281, Paragraph 1, Clause 2 of the German Civil Code if he demonstrates that he is not interested in the partial performance. Because of the contradiction between sentences 2 and 3 of this provision is controversial whether too little delivery - after § 434 para 3 BGB. Poor performance is to be considered when compensation also as a bad performance or as part of power - the same stands. If, with a minor opinion, it is also to be regarded as a poor performance here , the creditor, in order to claim large damages , only has to demonstrate that the breach of duty (in this case the insufficient quantity delivered) is not insignificant. This evidence often is much easier than that at prestige of too little supply as part of performance required, proof that there is no interest in partial performance.
The obligee can demand compensation for any damage to his integrity interests, insofar as it has arisen from the partial performance, in addition to the performance in accordance with Section 280 (1) BGB. Only a minor opinion takes the view that damage to the creditor's interest in integrity caused by partial performance, mostly loss of use , is not "simple" compensation, but in truth compensation for damage caused by delay - with the argument that the fault-free performance is "only" provided too late , and according to Section 434, Paragraph 3 of the German Civil Code (BGB), partial performance in sales law is equated with a material defect and thus poor performance . Representatives of this view must consequently demand the existence of the requirements of § 286 BGB - commonly known as debtor default - and thus also a reminder from the obligee. However, some consider the reminder to be dispensable within the meaning of Section 286 (2) BGB.
In sales law , Section 434 (3) of the German Civil Code (BGB) equates insufficient delivery, which actually represents a partial performance, with poor performance (poor performance).
Construction
In construction , the term partial services is used differently. Partial performance is a position in the specification of services ( Section 7b, Paragraph 1 VOB / A ). In § 2 para. 3 VOB / B , the partial services are in the remuneration mentioned. The condition of parts of the service is to be determined jointly by the contractor and client upon request in accordance with Section 4 (10) VOB / B , if these parts of the service are withdrawn through further execution of the test and determination. This can be referred to as a technical acceptance in contrast to the legal acceptance of § 12 VOB / B.
