VOB / B

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Logo of the German Institute for Standardization DIN 1961
Area Construction
title VOB procurement and contract regulations for construction works - Part B: General contractual conditions for the execution of construction works
Latest edition April 18, 2016
ISO -

The VOB / B , full title VOB procurement and contract regulations for construction works - Part B: General contractual conditions for the execution of construction works , is a traditional set of clauses that have been jointly developed and continuously updated by client and contractor associations , which are used as general terms and conditions for construction contracts is designed in Germany. It is published as a DIN standard in 1961. Since the elaboration committee is made up of equal numbers, the legislator privileges the VOB / B in Section 310 (1) sentence 3 BGB with regard to the content control of individual provisions. It was created in particular to compensate for the lack of building-specific rules in the statutory work contract law of the BGB . To this end, it supplements and modifies the statutory regulations. In Germany, the VOB / B is mandatory for public construction contracts and is also very widespread in private construction contracts.

The VOB / B is one of three parts of the procurement and contract regulations for building services (VOB) (formerly: contracting regulations for building services). The VOB was created in 1926 and is today continuously adapted to current conditions by the German Award and Contract Committee for Construction Services (DVA).

Comparable international regulations are the SIA standard 118 (Switzerland), the ÖNORM B 2110 (Austria) or the FIDIC conditions (international).

Emergence

The VOB was created by the German Procurement and Contract Committee for Construction Services (DVA). In the DVA, an association, the public sector and top organizations in the construction industry have contributed to the development of the VOB / B with the aim of creating rules for the execution of construction contracts that bring about a fair balance between the interests of the client and the building contractor.

meaning

Public clients are obliged to agree the validity of VOB / B in building contracts with their contractors. But also in construction contracts of private clients, the contracting parties often agree on the application of the VOB / B without being obliged to do so.

Legal nature

The VOB / B is not a law, but according to prevailing opinion it has the character of general terms and conditions. As such, it only becomes part of the contract if its validity is agreed between the contracting parties. This usually happens because one contracting party (the user in terms of the law of the General Terms and Conditions) bases the application of VOB / B in the tender or offer and the other contracting party offers or accepts the offer on this basis. The user must provide consumers with information about their content by handing over a print or otherwise give them the opportunity to take note of their content in a reasonable manner. With the agreement of the VOB / B also automatically VOB / C agreed that more detailed regulations includes the execution and settlement.

In construction practice, it often happens that in addition to VOB / B and C, the application of “special contractual conditions” is also agreed by a contracting party. If various clauses included in the contract contain competing provisions, it must be regulated which conditions take precedence. Such a regulation can be found, for example, in Section 1 (2) VOB / B.

General terms and conditions are subject to a content control according to §§ 307 ff. BGB . In the past, however, based on the statutory regulation in Section 23 (2) No. 5 AGBG, old version of the VOB / B regulations, the case law had not subjected the content to any control if the VOB / B as a whole was included in a contract if its Regulations have not been changed again by additional agreements in the construction contract or in additional contractual conditions of a party. The basic idea was that it was a collectively negotiated and overall balanced set of clauses. Even if individual provisions in the VOB / B, viewed in isolation, do not withstand a content check because they deviate from the law to the disadvantage of a contractual partner, this disadvantage is compensated for by other provisions that are favorable to the same contractual partner, so that the VOB / B in its unchanged form is overall balanced applies.

Following the reform of the law of obligations, it was partly doubted to what extent this privilege of VOB / B (i.e. the omission of a content control of individual clauses) could continue to apply, because the initially in § 308 No. 5 and § 309 No. 8b) ff) A comprehensive privilege could not be clearly inferred from the provisions of the German Civil Code. In the area of ​​consumer contracts, it has been questioned whether the privilege of VOB / B does not contradict the European Clause Directive . In a judgment of January 22, 2004 ( BGHZ 157, 346 = NJW 2004, 1597) the Federal Court of Justice ruled that any contractual deviation from the VOB / B means that the VOB / B is not agreed as a whole. The weight of the deviation does not matter. The BGH has expressly left open whether the privilege can continue to be applied after the reform of the law of obligations. In a judgment of July 24, 2008 (BGHZ 178, 1), the BGH ruled that when VOB / B is used towards consumers, every single clause is subject to the general terms and conditions control according to Sections 307 ff. BGB. He has not yet decided which clauses are individually void, but rather referred the legal dispute back to the Chamber Court.

In the following period, the legislature made a legal clarification. The previous special regulations on VOB / B in § 308 No. 5 and §§ 309 No. 8 b) ff) BGB old version have been deleted. The new regulation in § 310 Paragraph 1 Clause 3 BGB provides that § 307 Paragraph 1 and 2 BGB with regard to a content control of individual provisions of the VOB / B does not apply if the VOB / B is against an entrepreneur or a legal entity Person under public law is used and is included in the contract as a whole without any deviations in content. The privilege of the VOB / B for the cases mentioned is regulated more clearly in the law, but no longer provided for cases where the VOB / B is used against a consumer, so that the individual clauses of the VOB / B are subject to content control in such contracts. According to § 310 Para. 3 No. 1 BGB, it is faked that the VOB / B was provided by the entrepreneur, unless the entrepreneur can prove that it was introduced into the contract by the consumer.

In practice it is almost impossible to include the VOB / B as a whole in the contract. The content control described above thus intervenes. The general terms and conditions law now differentiates between the user and the other contracting party ( Section 305 (1) BGB), in which case the user sets the general terms and conditions . The aim of the law is to protect the other contracting party, i. In other words, during a content check, only those paragraphs are checked that are at the expense of the other contracting party. However, clauses that make the user worse off remain valid. For the VOB / B this means that it is first checked which contracting party has brought the VOB / B into the contract. This then becomes the user within the meaning of § 305 BGB for whom all the unfavorable rules of the VOB / B apply (cf. § 307 Paragraph 1 Clause 1 BGB). However, the other contracting party is protected by the content control. It is different if both parties agree on the use of VOB / B. As a result, both become users according to § 305 BGB and the individual regulations of the VOB / B are not subject to the content control according to § 307 Paragraph 1 BGB.

Version applicable in the specific construction contract

The VOB / B goes back to 1926. It has been and is continuously adapted to the current circumstances, in particular the legal framework. In this respect, there are numerous versions of the VOB / B, which are designated with the respective year for clarification. For contracting authorities it is officially determined from when they have to base their contracts on the updated version.

Private contracting parties are free to agree on the VOB / B. Accordingly, it is up to you to make a specific, also an older version of the VOB / B as a basis. It is not advisable to agree to an older version, as changes to the VOB / B mainly serve to adapt to the current status of the legal regulations and case law that remain relevant, even with the agreement of VOB / B, and these are then missing. If no specific version is agreed, the latest published version valid at the time the contract is concluded is deemed to be agreed.

The current edition of VOB / B is the 2016 version.

VOB / B and BGB

In principle, construction contracts are based solely on the work contract law of the BGB. However, many of the provisions of the BGB are not mandatory. They can therefore be supplemented or modified by contractual regulations, both by individual contracts and by general terms and conditions such as VOB / B. If the VOB / B is agreed, some provisions in the BGB are replaced by different provisions, while others are not affected by the VOB / B and apply alongside them. When the VOB / B is used by public clients, in addition to the VOB / B, other conditions such as ZVB and BVB are regularly agreed to supplement the regulations of VOB / B. The content of these supplementary regulations is partially specified in VOB / A.

Significant deviations of the VOB / B from the law on work contracts of the BGB are in particular

  • the special regulation for service delays in Section 5 (4) ,
  • the compensation for cases of disability according to § 6 para. 6 ,
  • additional special regulations for acceptance (formal, fictitious) in § 12 ,
  • the regulation of claims for defects (before acceptance in Section 4 (7) , after acceptance in Section 13 ), whereby the focus is more on the removal of defects than under the BGB and the statutory right of withdrawal is excluded,
  • the shorter limitation period for claims for defects in buildings of 4 years (Section 13 (4)),
  • the interruption of the statute of limitations for claims for defects by means of a written notification of defects by the client (Section 13 Paragraph 5 No. 1),
  • the maturity requirements of the auditable invoice ( § 14 ) and the audit of the final invoice ( § 16 (3) no.1 ),
  • the further right to payments on account (Section 16 (1)),
  • the defense of unconditional acceptance of the final payment (Section 16 (3) No. 2) and
  • the special regulation for the interest on wage claims in the event of default (Section 16 (5) No. 3 and 4).

Compared to the BGB, the VOB / B contains some formal requirements for the enforcement of the client's rights. If these formalities are not observed, there is a risk of loss of rights.

literature

Web links

Individual evidence

  1. ↑ BAnz AT 01/19/2016 B3