Consumer construction contract - not for the award of individual trades
If a consumer within the meaning of Section 13 of the German Civil Code concludes a contract with a contractor within the meaning of Section 14 of the German Civil Code for the conversion or new construction of a building, it must be clarified whether this is a so-called consumer construction contract pursuant to Section 650i of the German Civil Code or a "simple" consumer contract pursuant to Sections 312 et seq. BGB in the area of construction and architect law. The demarcation is important, because both regulations differ quite considerably in their legal consequences - for the client and the contractor.
Possibility of revoking the contract
Both contracts are revocable for the protection of the client as a consumer. The consumer contract, however, is only revocable if it was concluded away from business premises (§ 312b BGB) or as a distance contract (§ 312c BGB). These restrictions do not apply to the consumer construction contract.
Legal consequences of revocation
If the client has effectively revoked the consumer contract, the contractor (entrepreneur) is not entitled to any remuneration if he has already performed services by then. He must even refund payments already received (progress payments, but also the final payment) and cannot demand compensation for the value of his services rendered. In the case of revocation of a consumer construction contract, on the other hand, the client at least owes compensation for the value of the services rendered up to the time of revocation. The distinction between the two contracts is therefore important because in the event of the effective revocation of a consumer contract, the contractor runs a strong risk of having worked "for free".
Construction workman's compensation and termination
Finally, when a consumer construction contract is concluded, the contractor cannot demand construction work security from the client pursuant to Section 650f of the German Civil Code and therefore cannot cancel the contract. Here, too, the distinction between the two contracts is significant for practice.
State of the dispute so far
The question of when exactly a consumer construction contract exists was disputed in case law. The Higher Regional Courts of Hamm (24 U 198/20) and Zweibrücken (5 U 52/21) had ruled that a consumer construction contract pursuant to Section 650i of the German Civil Code (Bürgerliches Gesetzbuch - BGB) also exists if the builder awards individual trades to different contractors, provided that the orders are placed at the same time or in close temporal connection and contribute to the construction of the new building. The Munich Higher Regional Court (20 U 8299/21) and the KG (21 U 41/21), on the other hand, had assumed a consumer construction contract only if the builder awards all the trades he intends to commission as part of his project to a single contractor ("construction from a single source" as in the case of a general contractor or general transferee).
Current decision of the BGH
This dispute was decided by the Federal Court of Justice (BGH) in its recent decision of March 16, 2023 (VII ZR 94/22). The awarding of individual trades as part of the construction of a new building is not sufficient to assume a consumer construction contract. This is already contradicted by the clear wording of § 650i BGB. Nor does consumer protection justify, in view of the clear wording of the law, applying the same provisions to the award of individual trades as to the construction of a new building. Finally, in the absence of an unplanned regulatory gap, the provisions on the consumer construction contract cannot be applied mutatis mutandis (by analogy) to contracts for individual trades in the construction of a new building.
Düsseldorf, March 27, 2023
Attorney Axel Kötteritzsch