How can I hire a contractor
Subsequent requests are ignored: Contractor may stop work!
(15.10.2018) The basis of a right of the contractor to refuse performance out of good faith (§ 242 BGB) can also be that the client behaves completely passively with regard to submitted supplementary offers - in violation of his cooperation obligations, because the contractor cannot be expected to give orders of the client according to § 1 para. 3 or 4 sentence 1 VOB / B, without on the other hand getting clarity about the remuneration to which he is entitled, according to the Düsseldorf Higher Regional Court in its judgment of 02.03.2018-22 U 71/17.
The client (AG) instructs the contractor (AN) to carry out roofing and sealing work. A flat rate of 280,000 euros is agreed as remuneration. During the construction phase, it turns out that additional services have to be carried out. The contractor carries out these services at the verbal order of the client, makes various supplementary offers and finally places his supplementary claims in an advance invoice. The client reduced the partial invoice by around 30,000 euros on the grounds that the supplements had not yet been commissioned or were still being examined. Later he only refers to the contractual payment plan without dealing with the addenda of the contractor. When the contractor then ceases its services, the client terminates the construction contract and has the work completed by a third party. He asks the contractor to reimburse an overpayment of 30,000 euros as well as reimbursement of additional expenses amounting to 180,000 euros. In contrast, the contractor asserts his remaining wage claim of 105,000 euros. The decision of the dispute depends on, among other things. from the question of whether the contractor was allowed to discontinue his performance and the termination by the client is therefore not to be regarded as a termination for an important reason, but as a free termination. decision
The district court has to check that again. In its "sailing instructions" the OLG states: The AG may not behave completely passively with regard to submitted supplementary offers - in this respect also within the scope of its cooperation obligations (cf. BGH, IBR 2000, 110). Because the AN cannot be expected to have to follow the instructions of the AG in accordance with Section 1 (3) or (4) sentence 1 VOB / B without obtaining clarity about the remuneration to which he is entitled, especially since the service expansion that makes the additional remuneration claim triggers, is solely in the well-understood interests of the client (cf. OLG Celle, IBR 1999, 203). Therefore, in case of doubt, a right to refuse performance can be assumed if the client finally refuses to conclude a (justified) supplementary agreement to an additional service ordered by him (cf. BGH, IBR 2004, 486). But even in the event that the AG remains passive over a longer period of time, the assumption of a further obligation of the AN to perform in advance without a sufficient reaction from the AG appears to be excluded because of unreasonableness or - conversely - a right of the AN to refuse performance is to be assumed as an exception if the amount of the disputed supplements in relation to the total remuneration makes up a considerable percentage share (cf. OLG Brandenburg, IBR 2009, 567; OLG Zweibrücken, IBR 1995, 49).
Under the conditions of § 16 Paragraph 1 No. 1 VOB / B (contractual performance and verifiable billing), the contractor can also demand advance payments for changed or additional services ordered by the client (only "in principle") if an agreement is reached on the amount of the remuneration to be paid has not (yet) taken place (BGH, IBR 2012, 441).
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