In conclusion, my response:
... it seems to me that there are uncertainties on your part regarding the exact scope of the duty to examine and the significance of the result of this examination. This lack of clarity often, at least according to my experience, stems from the approach of merely reading and quoting laws (Building Code, VOB, HOAI, etc.). Much more important at this point, and providing an almost exhaustive insight, are the related commentaries. Only these make clear which considerations and intentions lie behind an often compact legal text.
The word "Schadenersatz" (compensation for damages) appears frequently below. Please do not regard this, as assumed by the company XXX on your part, as a threat, but merely as a legal fact.
Your remark: "In principle, it is up to the client to decide what, when, to whom, and in what amount they pay. It is your business."
This is completely correct at first. However, when the architect violates the duty to examine, they may be obliged to pay damages:
A payment recommendation issued by the architect carries significant weight, as the client is regularly entitled to rely on such a recommendation. Therefore, the Higher Regional Court (OLG) Frankfurt am Main sentenced an architect to compensation for damages in a final decision dated March 31, 2016 (File no.: 6 U 36/15).
This corresponds to the case law of the Federal Court of Justice, which already decided on April 4, 2002, that the client may trust the payment recommendation of their architect as long as the architect does not inform the client that certain points should still be examined (File no.: VII ZR 295/00). Thus, there is a duty for the client to verify the recommendation only if there are clearly recognizable indications that the architect may have based it on incorrect assumptions, as emphasized by the OLG Frankfurt...
... In cases of uncertainties about the payment status, the architect is therefore well advised to clarify these with the client, or at least to point out that the payment recommendation is only given under the reservation of the client’s own examination. Even if the architect is in doubt about the existence of the conditions, for example, for a cash discount or a security retention, they must disclose this.
Observing the corresponding duties of care is also absolutely sensible because architects simultaneously endanger their professional liability insurance coverage by either neglecting or carrying out an overly superficial invoice check. The OLG Cologne also decided as much on June 2, 1996 (File no.: 9 U 14/96).
Invoice verification is part of the basic services to be provided in performance phase 8 and constitutes a principal contractual obligation. The architect must first check whether the invoiced prices correspond to the agreed prices, whether the invoiced quantities correspond to the measurement, whether services are wrongly charged as additional services, whether agreed cash discounts, rebates, and security retentions as well as down payments and advance payments have been correctly taken into account, and whether the invoiced services have been fully and properly provided (Werner/Pastor, Der Bauprozess, 15th edition, para. 2026). This examination duty extends to all invoices presented to the architect, meaning not only final invoices but especially interim invoices as well (cf. OLG Cologne, judgment of July 2, 1996, File no.: 9 U 14/96).
Your comment: "Regarding points a. to j., point k. contradicts point e. and it is not my task to help you commit fraud. I check the mathematical and factual accuracy of the invoices."
I ask for caution and careful handling of the word "fraud."
I also cannot explain at which point you see a contradiction. Point e states that the mathematical accuracy of the invoice must be examined. Now, the following results may occur:
- The examination result corresponds to the invoice
- The examination result is lower than the invoice
- The examination result is higher than the invoice
Point k now explains how to act in the third case. Even if this is morally debatable, the law is clear here. Explanation follows.
Regarding point 1:
Side note: In my opinion, there is a contradiction here. On the one hand, you know what is agreed in the contract (sentence 2); on the other hand, you do not know because the contract is not available (sentences 5+6). I will ignore this further for now.
Formal requirements for interim invoices
Tax requirements
Every issued invoice must contain the following information pursuant to § 14 para. 4 of the German VAT Act (UStG):
1. The full name and full address of the performing contractor and the recipient of the service
2. The tax number or VAT identification number of the performing contractor
3. The date of issue
4. A unique, consecutive invoice number
5. Scope and nature of the service
6. Time of the service (à side note: this may sometimes also be insufficient on the invoice)
7. The remuneration for the service as well as any agreed reductions in remuneration in advance (e.g., cash discount), unless already included in the remuneration
8. The applicable tax rate and the tax amount attributable to the remuneration
Representation of the performance status, including interim measurement
According to § 632a para. 1 sentence 2 of the German Building Code and § 16 para. 1 no. 1 sentence 2 VOB/B, the services to be invoiced with the interim invoice must be proven through a statement that "must allow a quick and secure assessment of the service."
Only then is the interim invoice due for payment. The verifiable statement with the measurement must be made by reference to the service description.
Clients must be able to verify before payment whether the agreed construction status has demonstrably and defect-free been provided and, thus, whether the interim invoice is due.
An interim invoice is not due until the contractor has proven the actual performance status by means of a verifiable interim invoice.
This also means practically the inclusion of an interim measurement. In no case is the blanket term "a-conto" with a flat amount, e.g., EUR 5,000.00, sufficient.Basically, there are no significant differences in verifiability between interim invoices and final invoices.
If the contractor wants to avoid extensive measurement proofs on interim invoices for the sake of speed, possible interim invoice and easing arrangements must be clearly regulated in the contract beforehand. In case of doubt, the requirements for traceability and verifiability of interim invoices should be detailed, e.g., that approximate measurements, estimated performance status, etc., may be permitted. If such "easing rules" are missing, a correct and complete interim measurement with all sketches, tables, etc., is indispensable.
Regarding point 2:
... In the invoice check, the architect must also consider special conditions, such as discounts, legitimately deducted or deductible cash discounts, etc. On the other hand, the architect is neither authorized nor obliged to correct errors due to omissions in the contractor’s invoice to the detriment of the client, since the architect, as the client’s trustee, is not supposed to represent the interests of the executing company, especially as the latter may be bound by its once submitted final invoice (cf. BGH BauR 1978, 145 = NJW 1978, 994; Lenzen BauR 1982, 23 with references; differently for VOB contracts, BGH BauR 1988, 217 = NJW 1988, 910). However, the case is different if it is merely a content correction with the same mathematical final result.... Furthermore, the invoice examination only affects the contractual relationship between client and architect, not the contractual relations between the client and the company. Therefore, the architect’s verification note on the invoices checked by him, especially the so-called correctness note, does not constitute an acknowledgment of the invoice amount found by the architect in relation to the client and the respective company...
... Rather, the note on the result of the invoice verification is exclusively addressed to the client and linked with a professionally substantiated, specifically quantifiable payment recommendation by the architect to their client (cf. Locher/Koeble/Frik, HOAI, 12th edition, para. 225 on § 34). Proposed invoice reductions must be explained to the client. If the architect detects errors in the invoice that benefit the client, he must inform the client but must under no circumstances point out such an error to the invoice issuer or correct it to the detriment of the client, as this would otherwise violate his fiduciary duties to the client (cf. Hebel, op. cit., para. 117 on § 15)...
... In ... case, the OLG Frankfurt sentenced the architect to compensate the client for the damage caused as a result of an excessive interim payment. The architect's duty to examine serves, according to the court, among other things to ensure that the client only makes justified interim payments and is not reliant on being able to offset any overpayments later.
Regarding point 3:
I can only give you feedback on this once you have named the type and timing of the acceptance as I have already requested. At this point, (again) a note that the organization of the acceptance of construction services and acceptance recommendation for the client is your responsibility.
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You should by no means make yourself an agent of anyone. I merely demand or refer to your obligation to perform.
Your comment: "If errors occur during my invoice check, it is your duty to report these to me..."
I can only point out errors that are recognizable to me as a layperson. As initially described, I may rely on and trust your payment recommendation. Obvious errors that I as an inexperienced client can notice, such as the invoice from company Kohnen and its incorrect mathematical check, were pointed out to you by my wife in the house with the note that "the discount was not taken into account." No change was made by you, and as I already wrote:
To avoid claims for damages against you due to overpayment, the invoice was settled by us based on the total gross amount of EUR 6,265.35.
Current case 4.
Invoice Company XXX 400073 dated 31.01.2020, your release dated 12.02.2020:
If an effective cash discount agreement has been made, the architect must check the invoice within the discount period to be able to claim the cash discount for the client.
Here the architect is obliged to check the invoice within these 14 days so that his client can claim the discount. This duty arises from the principle of good faith, according to which the contracting parties must do everything to achieve and secure the performance success. This also includes the duty to secure payment advantages for the client in the form of discounts or cash discounts. (From attorney Eva Bouchon, specialist lawyer for construction and architects law, law firm Leinemann & Partner, Berlin)
If you feel like an agent due to my request to clarify this with company XXX, I want to make it clear that I merely wanted to give you the opportunity to possibly prevent a claim for damages arising from your breach of duty.
A note also on securities for the client:
An automatic (statutory) right to security only exists for consumers (§ 632a para. 3 German Building Code). All other clients (especially the public sector and private clients) have no automatic/statutory right to a security, neither concerning contract fulfillment nor warranty.
This means that the outstanding remaining claim, in my opinion, by rounding up the positions billed with 0.8 units in the interim invoice to a full 1 unit, suggests a final invoice claim of EUR 1,523.80 (net). Was this taken into account when verifying the interim invoice?
I kindly ask you to pay special attention to the above-mentioned points in future invoices.