Unit price contract: Construction schedules are not instructions within the meaning of Section 2 (5) VOB/B.

In this ruling (case no. VII ZR 10/24), the Federal Court of Justice (BGH) definitively dismissed a building contractor's claim for further remuneration for its services (additional costs due to the provision of containers and increased collectively agreed wages) in the mid five-figure range under a unit price contract. The tender documents for the construction project specified concrete dates for the start of execution and completion ready for acceptance. Shortly after the planned start of construction, the plaintiff contractor first reported a construction hindrance due to a lack of readiness for acceptance. The construction schedules subsequently submitted to it initially provided for the plaintiff's work to be carried out only in partial areas and for completion several months after the date specified in the invitation to tender. A construction schedule drawn up later provided for a further postponement of completion by one month.

The BGH interprets Section 2 (5) VOB/B, which concerns general terms and conditions, as meaning that a contract-changing order in this sense requires a legal declaration by the client that is intended to unilaterally bring about a change in the contractor's contractual obligations. This is obvious for the amendment of a construction design pursuant to Section 1 (3) VOB/B; nothing else can apply to a "different order" within the meaning of Section 2 (5) VOB/B.

Such orders are to be distinguished from disruptions to the contract due to obstructions, which in fact lead to delays in construction time and do not result in a claim for additional remuneration, but may result in claims for damages or compensation (§ 6 para. 6 sentence 1 or 2 VOB/B in conjunction with § 642 BGB).

Whether a declaration or behavior of the client is to be understood as an order within the meaning of § 2 para. 5 VOB/B is determined by the BGH by interpretation in accordance with §§ 133, 157 BGB. An order in this sense does not exist if a disruption in the construction process has occurred, which in fact leads to a delay in construction time and the client informs the contractor of the impediment and its consequence that the services cannot currently be carried out. From the perspective of the recipient of the declaration, such a notification is not a legal declaration of an amendment to the contract, as it only confirms what has already occurred as a result of the impediment. If the client provides the contractor with (amended) construction schedules that respond to the disruptions to the contract, this also does not constitute an order within the meaning of Section 2 (5) VOB/B - even if the construction schedules specify the execution deadlines. This is because the client thereby fulfills its coordination task in the cooperation of various contractors. The designation of a contractual deadline as binding in a construction consultation does not lead to a different interpretation either.

In addition, the BGH upholds its case law according to which the contractor's claim for damages pursuant to Section 6 (6) sentence 1 VOB/B presupposes that the delay in the construction period was adequately and causally caused by impeding circumstances, which in turn are based on a breach of contractual obligations by the client. In contrast, mere circumstances from the client's sphere of risk that occurred through no fault of his own are not sufficient. The standard requires that the debtor must be responsible and thus refers to Section 276 BGB; the conceivable forms of fault always require an attributable objective breach of duty by the debtor. In contrast, a breach of (cooperation) obligations is not sufficient. If a client does not commission preliminary work from other contractors in good time, this does not constitute a breach of duty, but a mere breach of obligation.