What is the importance of a contractor

Specialist literature Comments and manuals Construction contract law according to BGB and VOB / B Part 2 VOB / B § 9 VOB / B Termination by the contractor B. Reasons for termination (§ 9 Paragraph 1) II. Default in acceptance by the client (Paragraph 1a)


Construction contract law according to BGB and VOB / B


Mark von Wietersheim

1. The client's duty to cooperate


Section 9 Paragraph 1 No. 1 regulates the possibility of termination in the event of a breach of an obligation to cooperate. However, Section 9 does not stipulate which obligations the client has to cooperate. Rather, it is a general reference to all construction contract cooperation obligations of the client. These result from the construction contract and in particular from the VOB / B.

The client has the following obligations to cooperate:



Obligation to provide the building site or other preliminary construction work

This is the most important obligation of the client, because no construction work is possible without a plot of land. Even a subcontractor with a very small and subordinate trade is always dependent on the provision of a working basis on which he can "base" his performance. The roof structure can only be installed after the top floor has been completed, the parquet only after the screed has been laid. The construction of the house can only begin once the construction site has been cleared. It is therefore the general duty of the client to provide the contractor with the floor or the services of subcontractors that he absolutely needs for the execution of his services. This client obligation is not expressly regulated in the VOB / B or in the BGB, but of course it arises from the systematics of building contract law. Because the contractor cannot bring his "working basis" himself (then he would be a seller or property developer). This system is expressed in Section 645 of the German Civil Code (BGB) and Section 4 (3) VOB / B when the term “substances” is used which the client “delivers”. While the BGB also has contracts outside of construction in mind in its work contract law, for example with tailors, mechanics and other entrepreneurs, where it makes sense to bring the "material", the VOB / B has adopted this logical principle for the construction industry. A building can only be built with and on a piece of land.


The client must provide the contractor with the necessary planning documents in good time and free of charge. This is, so to speak, the continuation of the obligation to provide the building site. Because the client must of course also inform the building contractor which construction work he wants. For this purpose, the client usually uses an architect or an engineer, who, however, only work for him in their own contractual relationship. However, the transfer of this order content to the contractor in the form of "execution documents" takes place within the framework of the construction contract by the client.



Obligation to stake out the main axes and terrain boundaries; Creation of the height control points (Section 3 (2) VOB / B)

This client obligation also follows from the basic obligation to provide, because the contractor naturally also needs information on the property boundaries and on connection and contact points. Otherwise there is, for example, the risk of a superstructure on neighboring properties. This is information and documents that normally only the client has or can obtain.



Obligation to determine the local conditions before the start of construction (Section 3 Paragraph 4 VOB / B)

This is an obligation to cooperate, because the building contracting parties should record and "acknowledge" the state of affairs in writing prior to the start of construction. However, this only "insofar as necessary" (see § 3 marginal number 48).


In many cases, this client obligation is relativized by the construction contract in that the contractor assumes partial obligations. For example, a general contractor who works alone on the building site has the contractual obligation to coordinate the individual trades. The local conditions also play a role in the distribution of duties. The client has an increased duty of order and traffic safety if there are third-party influences on the property or operating conditions during the construction work, for example in the case of track or road construction. On the other hand, when building a tunnel, for example, the contractor is regularly “master of the house”, as the construction site only offers a narrowly delimited working space and is not freely accessible. With conventional "house building", however, the client has to keep out influences e.g. by neighbors, visitors or other entrepreneurs specially commissioned by him. It must therefore be checked in each individual case to what extent these client obligations - expressly or based on the circumstances - have been expanded or restricted in the construction contract. The requirements of VOB / B only apply unless otherwise agreed.


This is also an original client task. Because if you do not have a building permit, you are not allowed to have a building constructed. In this case, the construction contract would simply not be feasible.



Obligation to provide storage and workplaces and connections (Section 4 (4) VOB / B)

The regulation regulates an important area, namely the space requirement beyond the actual building area (storage and equipment areas, sanitary facilities) and the building site accesses. With regard to water and energy, the client only has to provide the corresponding connections. The contractor bears the consumption. The obligations regulated in Section 4 (4) are often regulated differently in the construction contract. In particular, the contractor has to clarify and cover his need for construction site equipment mostly on his own responsibility. In many cases, the connection and access options are also regulated by the contractor.


Section 5 (2) VOB / B stipulates that the client must provide the contractor with information on the expected start of the work on request if no deadline has been agreed for this. However, since this is almost always the case, the determination is of little practical importance. The contractor must start work within 12 working days of being requested to do so (sentence 2). The duty to provide information also results in the customer's duty to actually call up the service within a reasonable time.



Obligation to make orders

Since the contractor is often dependent on clear instructions from the client for the progress of the work, there is an obligation for the latter to cooperate. This can, for example, relate to orders according to Section 1 (4), Section 4 (1) No. 3, and Section 4 (3). The provisions of VOB / C also regulate individual duties to cooperate in the form of orders. For example, the client must make (joint) stipulations when contaminants are encountered (DIN 18299, Section 3.3).



Construction contract cooperation obligations

Since the construction contract is a permanent, usually even a regular long-term contractual relationship, there is a need for the parties to work together in a trusting manner. Otherwise a building cannot be created smoothly and successfully. Both parties are dependent on each other, so that it is really of no use to either party to enforce their (supposed) claims regardless of the interests of the other. For example, the question of whether a claim for remuneration rejected by the client - in the amount claimed - is justified and therefore entitled to stop work or give notice, will in many cases only be clarified in court years later. At the moment of the dispute, both parties are therefore uncertain about the success of their actions. It therefore makes sense to allow the project to continue through mutual concession and to find an amicable solution or at least to fight the matter out afterwards. This obligation to cooperate has found expression in many parts of the VOB / B, for example in § 2 paragraph 3, paragraph 5 (price agreement), § 4 paragraph 10 (joint assessment of the condition), §§ 12 paragraph 4, 14 paragraph 2 ( further joint determinations during measurement and acceptance).


In addition, the case law has derived a general construction contract cooperation obligation from the conflict situation described above in the context of a long-term contract. The parties are therefore fundamentally obliged not to let the purpose of the contract fail because of their own maximum position. Anyone who refuses to negotiate without showing a willingness to compromise or rejects a compromise offer without serious consideration and stubbornly insists on his position can thereby also violate a general contractual obligation in legal terms. Both contractual partners must work towards ensuring that the construction project is completed on time, economically and free of defects. This purpose must be in the foreground. Therefore, both parties are expected to at least reconsider their maximum positions in the event of differences of opinion, examine the other contracting party's demands and negotiate together to find an amicable solution.


However, the specific duty of cooperation on the part of the client must be due, i.e. the contractor must also be able to claim it at the time in question. In particular, this is not the case if, according to the construction contract, the client is only intended to cooperate at a later point in time or if the contractor begins his services too early.


The contractor must also be able to provide the service and thus to accept the customer's cooperation. There must be a willingness to perform, the ability to perform and the will to perform. This can be doubtful in individual cases. The contractor is then obliged to provide information on this.


Finally, the contractor must also offer his service and ask the client to cooperate. However, this is rarely a problem in practice. This is because the range of services can already be provided by verbal explanation or by coherent behavior, for example by setting up the construction site or providing staff. The request to the client to provide his duty to cooperate must be made expressly, but is also present in most cases.