Effect of a change in the recognized rules of technology during construction management

The facts of the case:

In July 2006, the contracting parties concluded a contract for the erection of three pent roof halls as a galvanized steel construction at a fixed price on the basis of VOB/B (2006). The contractor based the construction on a snow load of 80 kg/m² in accordance with DIN 1055-5 (1975) valid at the time the contract was concluded and the building permit for the location of the construction project issued in 2006. According to the technical specifications of the amended DIN 1055-5 (2005), which had to be taken into account when applying for a building permit from 01.01.2007, a snow load of 139 kg/m² would have had to be applied. Following notification of completion by the contractor, the client refused acceptance, citing non-compliance with the requirements of DIN 1055-5 (2005), as the steel structure erected would not withstand a snow load of 139 kg/m². A previous request by the client to reinforce the steel structure accordingly had been rejected by the contractor. Subsequent to an independent evidentiary procedure, the client asserted an advance payment claim against the contractor for the costs of upgrading the steel structure.

The decision:

While the Hechingen Regional Court had upheld the client's claim in full, the Stuttgart Higher Regional Court dismissed the claim in part, but nevertheless awarded the client part of the advance payment it had requested. The Federal Court of Justice overturned the judgment of the Higher Regional Court of Stuttgart and referred the case back to the Court of Appeal for a new hearing and decision.

In its reasoning, the Federal Court of Justice stated that the contractor was obliged under Section 13 No. 1 VOB/B (2006) to construct a building that complied with the agreed quality and the generally recognized rules of technology at the time of acceptance. It is irrelevant if lower requirements are placed on the construction work under public law. The decisive point in time is the acceptance of the Contractor's work performance, even if the generally recognized rules of technology change between the conclusion of the contract and acceptance. In such a case, the Contractor is obliged to inform the Client of the change and the associated consequences and risks for the execution of the construction work, insofar as these are not already known to the Client. The client then has two options:

He can demand compliance with the new generally recognized rules of technology, so that the contractor is obliged to upgrade the work he has already started until acceptance. If the contractor has to provide additional services not provided for in the original contract, he can generally demand an adjustment of the remuneration in accordance with § 1 No. 3, No. 4 or § 2 No. 5, No. 6 VOB/B (2006).

If the client wishes to prevent the project from becoming more expensive, he may waive compliance with the new generally recognized rules of technology vis-à-vis the contractor. In this case, the construction target does not change.

Another aspect of the decision concerns the requirements for a claim by the client for reimbursement of the costs necessary for the completion of the construction project in accordance with § 4 no. 7, § 8 no. 3 para. 2 sentence 1 VOB/B (2006). According to § 8 No. 3 Para. 1, No. 5 VOB/B (2006), such a claim generally requires a written termination of the construction contract by the client. However, if the contractor seriously and definitively refuses to fulfill the construction contract, a separate declaration of termination by the client was dispensable according to the previous case law of the Federal Court of Justice in accordance with the principles of good faith, as the contractor had lost the right to fulfill the contract due to its final refusal (see BGH, judgment of 12.01.2012, file no. VII ZR 76/11, NJW 2012, 1137). The VII Civil Senate, which is responsible for private construction law, no longer adheres to this case law, as the fact that the contractor has lost the right to fulfill the contract does not eliminate the client's right to insist on fulfillment of the contract. In addition to a serious and final refusal to perform on the part of the contractor, the affirmation of a claim under § 4 no. 7, § 8 no. 3 para. 2 sentence 1 VOB/B (2006) therefore also requires conduct on the part of the client from which the purpose pursued by the regulation of creating clear conditions on the construction site is achieved. The client must therefore at least implicitly express its intention to terminate the contract with the contractor.

The decision of the VII Civil Senate in the event that the generally recognized rules of technology change between the conclusion of the contract and the completion and acceptance of the building corresponds to the prevailing view in the literature to date. As a result, it is also appropriate, as the basis for the contractor's price calculation are the regulations valid at the time of the conclusion of the contract. If the generally recognized rules of technology change after conclusion of the contract, the external framework conditions for the construction project will change in this respect. However, this risk is generally borne by the client, as it is ultimately the client's investment risk. However, the decision also emphasizes the duty of cooperation of the parties to the construction contract: The contractor who recognizes that the generally accepted rules of technology relevant to his trade change during execution is obliged to inform the client of this and thus give the client the choice of either demanding an adaptation of the work to the new technical regulations with a corresponding additional remuneration claim by the contractor or having the work completed unchanged. In this case, the advantage for the contractor also lies in a clearer liability regulation for him.