Questions which are frequently asked with reference to building law issues

Warranty period for „latent defects or deficiencies“?

Are the provisions of the Contracting Rules for the Award of Construction Work Part B („VOB/B“ rules) automatically applicable for every building contract ?

 

No.  The German Contracting Rules for the Award of Construction Work Part B („VOB/B“ rules) must be agreed upon and contracted for every individual case.

 

These Contracting Rules for the Award of Construction Work Part B are not laws or official regulations, but rather General Business Terms and Conditions.

 

The answer to the question of the manner and way in which these VOB/B Rules will validly be made part of the building contract depends, amongst other things, on who are the parties who conclude the building contract.

 

 

When does the principal have a right to ask for a warranty bond, when can the principal claim a contractual penalty?

Both of these rights must be agreed upon in the contract.

 

Althought these VOB/B rules contain provisions concerning „building work safety“ and contractual penalty these rules require the addition of yet further  details.  

 

If the parties to the building contract do not make use of this possibility to set up specific and precisely defined provisions in this respect, this means that no pertinent contractual agreement has been concluded.

 

 

What is a defect or deficiency?

If a principal makes a complaint concerning a defect or deficiency to the contractor, such a defect or deficiency must be described as exactly as possible as far as its precise location and its appearance are concerned.

 

There is no need for the principal to specify (potential) causes for such a defect or deficiency. The properly stated complaint concerning a defect or deficiency (including the setting of a deadline) is a prerequisite e.g. for its substitute performance.

 

In view of pertinent current jurisprudence one should, however, not rely on that a complaint concerning a defect or deficiency will interrupt the warranty period which is defined in Section 13 No. 5 of the VOB/B rules.

 

 

What is a defect or deficency?

It is a defect or a deficiency if the contractor’s performance does not comply with the generally acknowledged rules of standard technology.

 

Regardless thereof it is also a defect or deficiency if the work is not in line with the contractually required or agreed-upon quality or nature of the work. 

 

It is, however, to be noted that not each and every defect or deficiency will give rise to claims for the same. In the reverse case it is not a prerequisite which justifies claims for defects or deficiencies that damage has already been caused as a consequence of such a defect or deficiency.