I’m sure the general contractor would come up with something in court if push came to shove. Just because he has no desire to disclose his calculation without pressure doesn’t mean he has nothing up his sleeve – or that neither he nor his lawyer can think of anything.
He can’t choose that. No one other than him is requesting the price adjustment here (under §313 of the Construction Code or what other basis should he cite?), so the burden of proof for the increased costs lies with him. If he doesn’t want to show his cards, he can only withdraw his price increase request (or choose the option of terminating the construction contract – but he must also prove the disruption of the basis of the transaction for that and not just claim it). The TE’s risk here is that the general contractor opts for termination – but in that case, I believe the TE is fine since, if I recall correctly, he has not presented the difference between the actual value of the achieved construction progress and its tentative reflection in the payment plan as significant so far and would be willing to continue to fend for himself. Therefore, his risk would be zero as soon as the general contractor declares the intention to choose the termination option. A deadline can be set for the general contractor, and if it passes without success, the TE’s termination under §648 of the Construction Code can be announced. I see nothing in this matter that depends on the ingenuity of a lawyer or the judge’s mood. The Construction Code has pleasantly short paragraphs in this area ;-)
And somehow this viewpoint that the contractor could just afford to forgo a few euros of profit annoys me… that’s a naïve perspective, I want my salary monthly, in full, and not give up part of it because the customer doesn’t want to pay the full price.
The customer is paying the full price, just not any fuller. And the contractor is free to choose whether to play the "proven increase" event card or the "termination" event card under §313 of the Construction Code if he doesn’t want to use anything from his margin to cover a price increase risk exceeding expectations.
Both parties made mistakes, but both can also come to an agreement or part ways. A construction contract was not made before God; humans may dissolve it :)