How do executing and executed contracts differ?

The influence of the planning error on the entrepreneur's liability for defects

The areas of activity of “planner” and “entrepreneur” differ, their contractual obligations are different and their areas of activity usually only overlap at the property. In addition, there can be no really precise delimitation of the cause. If a planner plans something wrong, an entrepreneur executing the plan inevitably also builds something flawed. If a soil surveyor overlooks pressing water, the planner does not provide any waterproofing and if the shell builder builds strictly according to plan, all of this contributes to the fact that the building becomes damp.

A. Deficits in the "legal status quo"

The classic contract types of the BGB are usually based on two contracting parties. With the exception of Section 642 of the German Civil Code (BGB), which is not very informative, the law on contracts for work and services does not contain anything that could make a decisive contribution to coping with multi-party relationships.


I. § 278 BGB and "planned delivery obligations"

The traditional recourse to Section 278 of the German Civil Code (BGB), according to which (misconduct) behavior by contractual partners of the client is attributed to the client's “vicarious agents”, cannot solve the problem. This provision from the general law of obligations only determines legal consequences. What is decisive, however, is the content, scope and scope of the violated third-party obligations or obligations, which must be clarified in advance of the application of Section 278 of the German Civil Code (BGB); the norm itself does not provide anything for this. With the assumption that the client would have to provide the contractor with flawless plans and documents - i.e. with the construction of planned delivery obligations or planned delivery obligations in which the architect is involved as a vicarious agent - there would be a third-party obligation that would require the application of § 278 BGB. But that only leads to a limited extent. A general There is no obligation for the client to plan. The model of the law on contracts for work and services of the BGB does not divide “planning” and “building”; Unless otherwise specified, “planning” is part of the production process and is to be carried out by the contractor himself. This is as natural for manual activities as it is for total contractors. Special entrepreneurs ("project engineers") or providers of "all-round carefree packages" in the "high-tech area". An entrepreneur who has not been released from the task of “planning” by the client by specifying a plan, generally has to plan his performance “correctly” himself, ie he must provide information, advice and advice in the same way as architects and specialist planners Fulfill information obligations, determine the use, usage and functional interests of the client and use the draft to deal with the project's problems “technically correct”. He is therefore responsible for all defects in the service he has provided in each case. Planning is therefore not a task that is “alien to the company” from the outset. In addition, technically incorrect, inadequate, non-exhaustive or unclear plans are not really about their delivery, but about their mistakes. Scheduled delivery obligations are only designed in order to limit the responsibility for defects of the contractor by allocating planning errors to the detriment of the client. But then it is better to deal directly with the central question of what effects planning errors have on the company's warranty obligation.


II. The establishment of third party responsibilities through the construction of test and notification obligations and the "functionality theory"

The provisions of VOB / B are basically based on the separation of the tasks of "planning" and "building". From this, principles for the distribution of responsibility between planners and entrepreneurs have been developed over decades. In particular, the inspection and notification obligations mean that the entrepreneur is also responsible for errors in his performance if "technically incorrect" plans are the basis of his construction contract and he does nothing other than replicate them in accordance with the plan - thus doing exactly what has been expressly agreed is. From a formal point of view, he could claim that the service was in conformity with the contract. Nobody wants to grant an entrepreneur who slavishly reproduces a wrong plan the liability privilege “acting on (contractual) orders”. The primary purpose of the construction of inspection and notification obligations is precisely to deny the entrepreneur this exonerating argument and to hold him responsible for performance that is in accordance with the plan, but incorrect. The justification of claims for defects from the violation of these obligations is only the second step in the previous overcoming of the limits of the performance obligations. This leads to the fact that in addition to the planner, who is of course responsible for the lack of his planning, the executing contractor also acts as a further subject of liability.

But this is not a really proven model in practice. On the one hand, it can only “work” sufficiently if one has not deviated too far from the VOB / B contract types. The fact that the trades are inadequately designed for construction purposes already means that areas of activity and areas of responsibility can hardly be effectively delimited from one another. It is similar when the performance results of architects, structural engineers and special specialists have to be integrated into the performance of other parties. Even if planning runs and interim results are sufficiently documented, it is practically as well as legally difficult to unravel the individual services and to assign errors precisely. Express contractual agreements on responsibilities ("plan run agreements") are certainly an advantage. But this presupposes that competent, experienced people had a common interest in objectively meaningful regulations when drafting the contract and were able to implement this, which is by far not always the case. "Flat-rate", "functional" and "global" descriptions of services also tempt you to consider such regulations to be dispensable from the outset, even a hindrance - and whoever wants to implement self-interested strategies does not orient his behavior towards the appropriateness, but only towards one for find the best possible evidence constellation.

On the other hand, these obligations are extremely individual. In the vast majority of cases, the application of traditional inspection and notification obligations also leads to collective liability on the part of planners and entrepreneurs. Basically, the entrepreneur is mostly seen as obliged to “check the plan until the technical error is found”; the justification of the corresponding inspection and notification obligations is usually extremely “goal-oriented”. The functional suitability theory of the BGH leads to a simplification in which it comes to this result without further ado. The question discussed elsewhere, whether and to what extent this view is correct, should be left open here. Both approaches lead to the fact that in the majority of all "everyday cases" the decisive question of who ultimately has to bear the economic burdens from the defect and how far is answered by determining the co-causation quota according to § 254 BGB.


III. The unpredictable co-causation rate

According to § 254 BGB - a norm of the general law of obligations - after an unspecified legal assessment, the causal proportions of all those involved are to be weighted, weighed and the judge then assesses who is primarily responsible. In individual cases, this opens up a very wide scope for decision-making, which is further increased by recourse to the general clause of Section 242 of the German Civil Code (BGB). The focus is primarily on considerations of a very general nature. In the case of planning errors, when it came to the “weighting of mutual failure”, it was initially agreed that the causal contribution of the planner usually outweighed that of the entrepreneur. Kniffka rightly states that this basic rule is often overlaid by the “peculiarities of the individual case” and occasionally “turned upside down”. With the emphasis only on causation and fault, one gets no further because of the typical “collective causation” of defects in the construction industry, especially since the latter does not at all fit the objective responsibility for defects of the entrepreneur, where fault does not matter. The question of whose behavior made the defect more likely does not help much either, since plans are intended “for exact replication”. Thus, every planning error is directly related to the cause of the object error by the entrepreneur. There is hardly any reliable indication of why one person should bear 30%, the other 50%, the third party 10% and the client 10% of the total effort, so that the results of the decision diverge considerably in similar situations. Because it is impossible to predict what the all-important “predominance” of responsibility will ultimately depend on, the chances of a complex and expensive legal dispute cannot be calculated. Indeed, this is "not very conducive to legal certainty". The “best knowledge and conscience of the judge” alone does not guarantee the correctness of his decision, the “principle of hope” that everything will remain within a tolerance framework is not a permanent solution.


End of excerpt -

The full essay "The influence of the planning error on the entrepreneur's liability for defects "first appeared in the trade journal “Construction Law” (BauR 2015, 171 - 183 (Heft2)). You can view and download the article online here.