Contractor termination right in the event of contradictory execution planning
> December 2014
In November 2012, the Higher Regional Court of Celle had decided that the client (Bauherr) or an architect retained by it shall have to provide the contractor (construction company) with executable plans which are inter alia free and clear of any contradictions. A client grievance against the inadmissibility of the jurisprudential appeal (Revision) was dismissed by the German Federal Court of Justice in August 2014.
The decision of the court was based upon the remodeling measure of a ramp in the entrance area of a hospital. The client had the execution plan prepared by an architect’s office. In the agreement for the work between the client and the contractor, the latter was retained both to render work in the form of services and to supply work and assembly plans. During the architect’s execution planning phase, a dispute erupted regarding the number of gradient points the ramp was supposed to have. The number of such points was determined during a subsequent coordination meeting; the exact number was, however, no longer capable of being clarified during the court proceedings. Despite the number of gradient points having been clarified, the architect office had provided the contractor with contradictory plans containing different numbers of gradient points in the time subsequent to said clarification. On several occasions, the contractor has requested from the client—with each request not being met with any success—that it provide clear planning documents and/or to have them provided by the architect, such that the contractor shall be able to execute its works and assembly plans and the construction services.After the non-contradictory plans were not provided, the contractor terminated the agreement for cause and demanded the fees (Werklohn) for the services rendered through the termination date and for the profits lost on account of the services no longer being able to be rendered.
And rightly so, as ruled by the Higher Regional Court of Celle.