International Construction Law Review
GERMANY ENACTS NEW CONSTRUCTION LAW
Andreas J Roquette, LL.M (NYU), Partner
Dr Daniel Schweiger, Counsel CMS Hasche Sigle, Berlin
The provisions in the German Civil Code (BGB)1 concerning the “contract to produce a work” (Werkvertrag), dating from the enactment of the Civil Code in 1896,2 were considered to not sufficiently cover the issues in today’s construction projects. Therefore, the German legislator, after a consultation period with various industry associations, passed a statute amending the Civil Code (sections 631 to 650(o) BGB).3
I. SITUATION BEFORE ENACTMENT OF THE NEW STATUTE
In the past, domestic construction contracts usually referred to an important standard contract recognised in the German construction industry, namely to the General Conditions of Contract relating to the Execution of Construction Work (Allgemeine Vertragsbedingungen für die Ausführung von Bauleistungen – VOB/B).
4 The VOB/B is a set of rules specifically drafted for the execution of construction contracts, which has existed since 1926, and was issued and regularly updated by the German Committee for Construction Contract Procedures (Deutscher Vergabe- und Vertragsausschuss für Bauleistungen – DVA). By adopting the rules of the VOB/B, the parties partly change and partially complement the rules of the German Civil Code.
Unlike other established standard contracts, for example the NEC-Contracts or the FIDIC Rainbow Suite, the VOB/B does not contain general and particular/optional conditions. It also has no subset of rules for different types of construction contracts. As a consequence, parties usually do not just agree on the VOB/B-rules as such, but draft complete contracts amending these rules quite extensively. In other parts of the construction industry, especially in the plant engineering industry, the VOB/B-provisions are not used. However, even though there is no industry standard in the
1 A translation of the German Civil Code is available at https://www.gesetze-im-internet.de/englisch_bgb/index.html (last accessed 23 August 2017).
2 RGBl. 1896, p 195.
3 BGBL. I 2017, p 969.
4 For a translation of the VOB see VOB 2012 in English, German Construction Contract Procedures, Parts A, B and C, 6th Edition 2013, Beuth Verlag GmbH.
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