In conclusion, my response:
... it seems to me that uncertainties exist on your part regarding the exact scope of the inspection obligations and the significance of the result of this inspection. This lack of clarity often, at least in my experience, stems from the approach of merely reading and quoting laws (Building Code, VOB, HOAI, etc.). Much more important here and providing an almost exhaustive insight are the corresponding commentaries. Only these make clear the considerations and intentions behind an often compact legal text.
The word "Schadenersatz" (damages) appears frequently below. Please do not see this, as suspected 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 what, when, and to whom they pay and in what amount. It is your matter.”
That is, in principle, completely correct. However, in case of a breach of the architect’s inspection obligation, they may be obligated to pay damages:
A payment recommendation issued by the architect carries significant weight, as the client may regularly rely on such. Therefore, the Higher Regional Court (OLG) Frankfurt am Main sentenced an architect to pay damages in a final decision dated March 31, 2016 (Case No.: 6 U 36/15).
This corresponds to the case law of the Federal Court of Justice, which decided on April 4, 2002, that the client may trust the payment recommendation of their architect, provided the architect does not inform the client that they should still check certain points themselves (Case No.: VII ZR 295/00). Therefore, as emphasized by the OLG Frankfurt, the client has an obligation to review the recommendation only if there are clearly recognizable indications that the architect may have based it on incorrect assumptions…
… If there are uncertainties in an individual case regarding the payment status, the architect is well advised to clarify these with the client, or at least to point out that the payment recommendation is made only under the reservation of the client’s own review. Even if the architect has doubts about the presence of conditions, for example for a discount deduction or security retention, they must disclose this.
Observing the corresponding duty of care is also absolutely sensible because architects risk losing their liability insurance coverage if they negligently or superficially review invoices. This was also decided by the OLG Cologne on June 2, 1996 (Case No.: 9 U 14/96).
Invoice checking is part of the basic services to be provided in service phase 8 and constitutes a contractual primary obligation. The architect must first verify whether the invoiced prices correspond to the agreed prices, whether the invoiced quantities correspond to the measured quantities, whether services are wrongly billed as additional services, whether agreed discounts, rebates, and security withholdings as well as down payments and advance payments have been correctly taken into account, and whether the invoiced services were provided completely and properly (Werner/Pastor, The Construction Process, 15th edition, Para. 2026). This inspection obligation extends to all invoices submitted to the architect, not only to final invoices but especially to interim invoices (cf. OLG Cologne, judgment of July 2, 1996, Case No.: 9 U 14/96).
Your remark “Regarding points a. to j. Point k. contradicts point e. and it is not my service to assist you in fraud. I check the mathematical and factual correctness of the invoices.”
I ask for caution and careful use of the word “fraud.”
I cannot understand where you recognize a contradiction. Point e says that the mathematical accuracy of the invoice must be checked. The following results can occur:
- The inspection result matches the invoice
- The inspection result is lower than the invoice
- The inspection result is higher than the invoice
Point k now states 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), and on the other, you do not, as the contract is not available (sentences 5+6). I will disregard it for now.
Formal requirements for the interim invoice
Tax requirements
Every issued invoice must contain the following information according to § 14 Para. 4 UStG:
1. the full name and full address of the supplying entrepreneur and the recipient of the service
2. the tax number or the VAT identification number of the supplying entrepreneur
3. the date of issue
4. a unique, sequential invoice number
5. scope and type of the service
6. time of the service (side note: may also be insufficiently noted on the invoice)
7. the remuneration for the service and any pre-agreed reduction in remuneration (e.g., discount), provided it is not already included in the remuneration
8. the applicable tax rate as well as the tax amount attributable to the remuneration
Depicting the performance status including interim measurement
According to § 632a paragraph 1 sentence 2 of the Building Code and § 16 paragraph 1 no. 1 sentence 2 VOB/B, the services to be invoiced with the interim invoice must be proven by a statement that “must enable a rapid and reliable assessment of the service.”
Only thereafter is the interim invoice due for payment. The verifiable statement including measurement must refer to the performance description.
Clients must be able to verify before payment whether the agreed construction status has demonstrably and defect-free been provided and thus the interim invoice is due.
An interim invoice is not due as long as the contractor has not proven the actual performance status by means of a verifiable interim invoice.
This also means, in practice, attaching an interim measurement. Under no circumstances is the general phrasing “a-conto” with a flat sum, e.g., EUR 5,000.00, sufficient. Fundamentally, with regard to inspection ability, there are no significant differences between interim invoices and final invoices.
If the contractor wants to avoid comprehensive measurement proofs for interim invoices for reasons of speed, possible facilitation and reliefs for interim invoices must be clearly regulated in the contract in advance. In case of doubt, the requirements for the traceability and verifiability of interim invoices must be regulated in detail, for example, that approximate measurements, approximate performance status, etc., are allowed. If such “facilitation rules” are missing, a correct and complete interim measurement including all sketches, tables, etc., is mandatory.
Regarding point 2:
... In invoice checking, the architect must also consider special conditions, such as price reductions, legitimately deducted or deductible discounts, etc. On the other hand, they are neither entitled nor obliged to correct errors due to omissions in the contractor’s invoice to the detriment of the client, since the architect, as a fiduciary of the client, must not protect the interests of the performing company, especially since the latter might be bound by their once-issued final invoice (cf. BGH BauR 1978, 145 = NJW 1978, 994; Lenzen BauR 1982, 23 with further references; different under VOB contract, BGH BauR 1988, 217 = NJW 1988, 910). Different, however, is when it is merely a content correction with the same mathematical final result.... Furthermore, the invoice review affects only the contractual relationship between the client and architect, not the contractual relationship between client and contractor. Therefore, the inspection note by the architect on the invoices he has checked, especially the so-called correctness note, does not yet constitute recognition of the invoice amount determined by the architect in the relationship of the client to the respective contractor ()...
… Rather, the note about the result of the invoice review is addressed exclusively to the client and is combined with a technically sound, specifically quantifiable payment recommendation from the architect to his client (cf. Locher/Koeble/Frik, HOAI, 12th edition, Para. 225 on § 34). Proposed invoice reductions must be explained to the client. If the architect identifies errors in the invoice that benefit the client, he must inform the client but must under no circumstances point out such errors to the invoice issuer or correct them to the client’s detriment, otherwise he would violate his fiduciary duties to the client (cf. Hebel, loc. cit., Para. 117 on § 15)…
… In the ... case, the OLG Frankfurt sentenced the architect to compensate the client for the damage resulting from an excessive interim payment. The architect’s inspection obligation serves, according to the court, among other things, to ensure that the client only fulfills legitimate interim payment claims and is not dependent on subsequently balancing any overpayments.
Regarding point 3:
I can only give feedback on this once you have informed me, as already requested, about the type and timing of acceptance. At this point (again), I would like to point out that the organization of the acceptance of the construction services and the acceptance recommendation for the client are your responsibility.
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You should by no means make yourself an instrument of anyone. I only demand or refer to your obligation to provide services.
Your remark: "Should I make errors during invoice checking, it is your duty to report them to me..."
I can only point out errors that are recognizable to me as a layperson. As described at the beginning, I may rely on and trust your payment recommendation. Obvious errors, which may be noticeable to me as an unskilled client, such as the invoice from company Kohnen and its incorrect mathematical check, were pointed out to you by my wife on site with the note that "the discount was not considered." No change was made by you and, as I have already written:
To avoid claims for damages against you due to overpayment, the invoice was settled by us on the basis of the total gross amount of EUR 6,265.35.
Current case 4.
Invoice company XXX 400073 dated January 31, 2020, your release dated February 12, 2020:
If an effective discount agreement has been made, the architect must check the invoice within the discount period to be able to claim the discount for their client.
Here, the architect is obliged to check the invoice within these 14 days, so that their client can claim the discount. This obligation arises from the principle of good faith, according to which contract parties must do everything to bring about and secure the success of the service. This also includes the duty to secure payment advantages for the client in the form of discounts or rebates. (by attorney Eva Bouchon, specialist lawyer for construction and architects law, law firm Leinemann & Partner, Berlin)
If you feel made an instrument by my request to clarify this with company XXX, I want to clarify that I merely wanted to give you the opportunity to possibly prevent a damages claim arising from your breach of duty.
A note also on securities for the client:
An automatic (statutory) right to provide security applies only to consumers (§ 632a para. 3 Building Code). All other clients (especially public clients and private-sector clients) have no automatic/statutory right to security, neither regarding contract fulfillment nor warranty.
This means that the open residual claim, in my opinion, by evaluating the items claimed with 0.8 units in the interim invoice as a full 1 unit, suggests a final invoice claim of EUR 1,523.80 (net). Was this considered when checking the interim invoice?
I also ask you to pay particular attention to the above points in future invoices.