Surety - How does it work?

Hello,

briefly about the situation. I have been living in the house since July. However, not everything was finished until then. The construction contractor has still been doing some work, but a few things are still outstanding. We recently agreed on the final invoice (additional and reduced services, etc.). Now he offered me a guarantee so that I have something in hand and can still pay the final invoice. (It is probably better for him tax-wise and also for new loans if he does not have too many unfinished construction projects.)

Now it says in the guarantee:

"Type of guarantee: defect claims according to VOB, Part B § 13 for already completed work accepted without complaints and conditions"

We do have complaints. We have also discussed this defect list with him, and afterwards, I sent it to him again by email so that he can work through it.
(I should probably have the defect list signed by him, right?)

Furthermore, it says: "This guarantee expires on 03.12.2023"
That means theoretically, if something is not fixed by then, I am out of luck, right? But of course, everything should be fixed next year.

How does it actually work if he does not fix it promptly, can I set deadlines for him, and if I have done that twice, can I then go to the insurance with this guarantee certificate and get the money, or how?

PS: In general, I do not expect him to cheat me, but sometimes you have to really get on his nerves to finally get something done.

That's already positive with the guarantee. Especially if he actively offers it!

I would bring in a specialist if you feel nothing is happening. On the other hand, you have to understand that the main contractor also passes these defects on to their subcontractors. They move from one construction site to another. Our defects were also resolved within 3 years

Bauboom you know

How does it actually work if he doesn't do it in a timely manner, can I set deadlines for him and if I do that twice, can I then go to the insurance with this guarantee certificate and get the money, or how?

Only if it is a so-called "first demand guarantee" (which is not so easy to agree on effectively and is invalid in, for example, general terms and conditions clauses). Otherwise, you need either (i) an acknowledgment from the contractor or (ii) a legally binding title (= judgment) against the contractor for money. Otherwise, the bank will not pay – after all, it wants to seek recourse against the contractor later on. In fact, the guarantee thus only protects against the failure of the (warranty) debtor due to insolvency. Why is it a VOB contract? (Assuming you are a private consumer? According to the Construction Code, they have a five-year warranty, not four years, as apparently suggested on paper here)

it's already positive with the guarantee. Especially since he actively offers it!

Well, otherwise I wouldn’t have paid him the rest, but only after he had fixed the defects.
Yes, it’s private, is "according to VOB" unusual? I think it already said that it was according to VOB in the unilateral construction contract back then.
Yes, 4 or 5 years. That is probably more ignorance/mistake on his part than intention.