When construction work in Germany is paid by the hour, the VOB/B requires a paper trail. The contractor must announce hourly work before it begins. Then he submits Stundenlohnzettel, lists of hours, materials and equipment, daily or weekly according to custom. The client must return the certified lists within six working days at the latest. Objections can be written on the sheet or sent separately. Nicht fristgemäß zurückgegebene Stundenlohnzettel gelten als anerkannt. Sheets not returned in time count as accepted.
Announce It First, or It Is Not Paid
German construction contracts under the VOB/B set strict rules for extra work. A contractor who does work the client demands but the contract does not provide for can claim special payment. Er muss jedoch den Anspruch dem Auftraggeber ankündigen, bevor er mit der Ausführung der Leistung beginnt. But he must announce the claim to the client before he starts the work. For changes the client orders, a new price should be agreed before the work is done. As a rule, work done without an order, or by departing from the order on one’s own, werden nicht vergütet, is not paid. Handling these claims has its own name in the industry: Nachtragsmanagement, the management of contract supplements.
By Registered Mail
German consumer advice treats a complaint as something to put in writing and prove. A leaflet of the consumer advice center in Baden-Württemberg says: Aus Beweisgründen sollten Sie eine Reklamation am besten schriftlich vortragen. Verwahren Sie eine Kopie dieses Schreibens. For reasons of proof, make a complaint in writing and keep a copy. If the customer sends the letter by post, dies sollte aus Beweisgründen nachweisbar per Einschreiben erfolgen, it should go by registered mail. The consumer center in Lower Saxony offers a sample letter that demands that craftsmen remove named defects.
Two Repair Attempts
A German shopper who returns a broken phone or appliance must usually give the seller a chance to repair it. Section 440 of the Civil Code sets the number. Eine Nachbesserung gilt nach dem erfolglosen zweiten Versuch als fehlgeschlagen … A repair counts as failed after the second unsuccessful attempt, unless the nature of the item or the defect points otherwise. After that, the buyer may withdraw from the contract or reduce the price without setting a further deadline. The consumer advice center in Baden-Württemberg puts it plainly: Normalerweise hat der Händler zweimal die Möglichkeit, die mangelhafte Ware zu reparieren. Normally the dealer has two chances to repair the faulty goods.
First the Deadline, Then Another Firm
A German customer may have a defect fixed by another firm and charge the cost to the first one. Section 637 of the Civil Code allows this only nach erfolglosem Ablauf einer von ihm zur Nacherfüllung bestimmten angemessenen Frist: after a reasonable deadline for repair, set by the customer, has passed without result. Lawyers speak of the zweite Andienung, the second attempt. A homeowner who calls a new plumber to fix a botched job, without first setting the original firm a deadline, can normally not charge the original firm.
A Record Signed by Both Sides
Sometimes a German customer refuses to accept a building job and names defects. Section 650g of the Civil Code then gives the builder a right. The customer must take part in a joint record of the work’s condition. The record should be dated und ist von beiden Vertragsparteien zu unterschreiben, and must be signed by both parties. If the customer stays away, the builder may make the record alone. Once the work is handed over, an obvious defect missing from the record is presumed to have arisen afterwards and to be the customer’s responsibility.
The Acceptance Record
On a German building site under the VOB/B, the standard construction terms, either party can demand a formal acceptance. Eine förmliche Abnahme hat stattzufinden, wenn eine Vertragspartei es verlangt. Both sides walk through the building together. Each may bring an expert. The result is written down, including known defects and the contractor’s objections. Public clients use a standard form, Formblatt Abnahme 442, which both sides sign immediately after the walk-through.
Silence Counts as Acceptance
When a German craftsman finishes a job, the customer must accept it. Payment falls due on acceptance: Die Vergütung ist bei der Abnahme des Werkes zu entrichten. Since 1 January 2018 the Civil Code also has a deemed acceptance. The craftsman can set the customer a reasonable deadline. If the customer does not refuse within it and name at least one defect, the work counts as accepted. A private customer must be warned of this effect in text form. One concrete defect is enough to stop it. Without one, acceptance takes effect even when serious defects exist.
Complain at Once, or It Counts as Accepted
Under § 377 of the German Commercial Code, a business that buys goods from another business must inspect them without delay after delivery. If a defect shows, it must notify the seller without delay. If it does not, the goods count as approved, unless the defect could not have been found on inspection. For a company, this means incoming deliveries must be checked right away. The same principle appears in other areas of law. A company bidding for a public contract that recognizes a violation of the rules must complain to the contracting authority within ten calendar days, or it loses the right to a review. In a civil trial, a party that knew of a procedural error and did not object in time can no longer raise it.
Thirty Days Before a Change
Since 1 January 2018, Section 650b of the Civil Code has regulated how the client of a construction contract can change the work. First, the two parties try to agree on the change and on the extra or reduced payment. The contractor must make an offer. For a change to the agreed result, this applies only if carrying out the change is reasonable for the contractor. If the client is responsible for the planning, the contractor must make the offer only after the client has done the planning for the change and handed it over. If the parties do not agree within 30 days, the client may order the change in text form.