Trouble with the developer - Taking special equipment in the construction contract

Hello Bernd,

I am not allowed to provide legal advice; this is reserved exclusively for the consulting professions in Germany!

However, our developer only wants to refund us 250.00 euros without any further justification and refers to §649 of the Building Code.

Is such a high reduction justified or can we oppose it?

This incident is a good example that you - sorry - saved in the wrong place beforehand...

In your contract for work - in § xyz concerning remuneration - it certainly says something like: "If services agreed upon in § xyz are removed, the refund offered by the contractor for the service applies, with which the client expressly agrees."

With that, you are the last one and have no means to oppose the offered amount of refund. A review of the contract for work including attachments by competent parties beforehand would have demanded this formulation for specification.

In my opinion, § 649 of the Building Code has less to do with it, since you do not want to entirely terminate the contract for work but only reduce it by a certain service.

Best regards

Hello construction expert,
thank you very much for your quick response.

I just looked through the contract again and found the following regarding termination:
The client's right of termination is governed by § 649 of the Construction Code. The contractor's right of termination is governed by §§ 642, 643 of the Construction Code.
Further explanations regarding termination are not included in the contract.
Does this not mean that in this case, even if not the entire contract but only one position is terminated, § 649 still applies?
Would the calculation of what the builder can withhold then not be: 5% of the contract value + his incurred costs, whereby he would still have to credibly prove these?

We previously had an identical case where our builder played the same trick:
Position according to the construction contract 680.00 euros; refund without giving reasons only with reference to § 649 Construction Code and that this was his right 120.00 euros.

Thank you again for your non-binding opinion without legal advice.

Regards
Bernd

Hello,

I just browsed through the contract again and found the following regarding termination:
The client's right of termination is governed by § 649 of the Building Code. The contractor's right of termination is governed by §§ 642, 643 of the Building Code.

Again, I am not a lawyer, so I must not provide legal advice and therefore my answer is based solely on my subjective experience.

For me, a change in service has nothing to do with the termination of the contract; not even when a partial service is removed. The relevant section in the Building Code is actually very clear.

Take a look at the remuneration section of your contract, in my opinion you should find what you are looking for there; if not, the only help is advice from a lawyer specializing in construction law, if no mutual agreement can be reached otherwise.
Since your private message to me is identical, no further response from me is needed.

Kind regards

Hello construction expert,

thank you very much for your opinion!

Greetings and have a nice Sunday...
Bernd

Hello everyone! I am also not part of the consulting profession, but I can look it up in the Building Code. The relevant paragraph reads: § 649 Right of termination of the client "The client may terminate the contract at any time until the completion of the work. If the client terminates, the contractor is entitled to demand the agreed remuneration; however, he must credit what he saves in expenses due to the termination of the contract or what he earns or maliciously fails to earn by using his labor elsewhere. It is presumed that the contractor is entitled to 5 percent of the agreed remuneration attributable to the part of the work not yet performed." The Building Code therefore assumes remuneration of 5%. If I were you, I would demand proof from the developer that the significantly higher costs he is claiming have actually been incurred.

A review of the contract for work and services including annexes by a competent party beforehand would have requested this formulation for specification.

Hello Bauexperte, stupid question, who reviews such a contract for work and services competently?

Thanks.