It was so nice – if the contractor had calculated correctly. If there were changes in quantity in a VOB/B contract, if agreement on the new unit price could not be reached, the remuneration was adjusted by means of a calculation update using the prices written down in the original calculation, true to the motto “a good price remains a good price – a bad price remains a bad price”. The new construction contract law, which is applicable to contracts concluded after 01.01.2018, already broke with this approach. The Federal Court of Justice (BGH, judgment of 08.08.2019, VII ZR 34/18) now enforces this also for old contracts according to the VOB/B.
What was the occasion?
In May 2013, the defendant client (CL) commissioned the contractor (CO) with demolition work in accordance with the VOB/B (German Construction Contract Procedures). There is a considerable increase in quantity for a disposal position tendered with only one tone. In fact 83.92 tons are actually exported. The unit price contract provides for a unit price of EUR 462.40 net per tonne for this item. Because of the increase in quantity, the AG demands the agreement of a new price and information about the actual costs of disposal. According to the Contractor’s information, these are 91.57 Euro net per ton of external costs for subcontractors (NU) plus a GU surcharge of 20% as well as 40.00 Euro net per ton of own loading costs. However, the CL shall only pay a unit price of 109.88 Euro net for the entire 83.92 tonnes. No price agreement for the additional quantities is reached between the parties. CO brings an action based on a settlement with the contractually agreed unit price of EUR 462.50 per tonne, which ends in the first instance with a judicial fixing of the unit price for the additional quantities at EUR 149.88 net per tonne in the first instance and at EUR 150.40 net per tonne ((91.57 X 1.2) +40) in the second instance. In contrast, the CO appeals to the BGH with the aim of enforcing the old unit price as far as possible.
The appeal was dismissed. The Federal Court of Justice states that in the case of excess quantities under § 2, Subsection 3, No. 2, VOB/B, the parties are also entitled to consent to a new price under the cooperation requirement. In case of disagreement, the court appealed to then decides on the new price. This examines whether the price applied is justified. The new price is to be assessed on the basis of the costs actually required due to a gap in the contract by way of supplementary interpretation of the contract. What is decisive is what the parties would have agreed in good faith as honest contractual partners if they had considered the case which was not regulated.
After consideration, the result is, that when forming a new unit price in accordance with § 2 Para. 3 No. 2 VOB/B (German Construction Contract Procedures), the best possible balance of the mutual interests is achieved by taking into account the actual costs of the services exceeding 10 % plus appropriate surcharges such as construction site overheads, general business costs and profit. Recourse to the pre-calculated price update is not necessary. The contractual price structure shall no longer apply for the determination of the new price taking into account the prices actually required. Instead, the new unit price can be determined independently and detached from the objectives of the pre-calculated price update. The fundamental considerations of putting a stop to the possibility of creative calculation have already been the subject of consideration within the framework of the legislative procedure for the new building contract law. There they led to the provisions in Sections 650 b and 650 c ff of the German Civil Code (BGB), which also only refer to the necessary costs. The BGH also implemented this idea for the old law.