Guideline
In the event of termination of an architect's or engineer's contract pursuant to Sec. 648 Sentence 1 BGB by a purchaser who would have been entitled to a special right of termination pursuant to Sec. 650r (1) BGB in the event of further performance of the contract, the claim pursuant to Sec. 648 Sentence 2 BGB with respect to services not rendered shall in principle not include remuneration for services which would have had to be rendered after submission of the planning basis with a cost estimate for approval pursuant to Sec. 650p (2) Sentence 2 BGB.
Facts
The plaintiff (engineering firm) concluded an engineering contract with the defendant for the provision of planning services. The plaintiff was to provide the service phases 1 to 5 (basic evaluation, preliminary planning, design planning, approval planning, implementation planning) for the new construction of an office building including an industrial and storage hall for a lump sum fee of just under EUR 40,000. The fee for the service phases was agreed on a percentage basis in ascending order of the service phases: 0%, 9%, 17%, 2% and 22%.
The plaintiff commenced its activities. Following various complaints about the initial planning services, the defendant terminated the contract without notice and without good cause.
The plaintiff demands from the defendant the agreed remuneration less saved expenses for the entire project (§§ 650q, 631 Para. 1, 648 Sentence 2 BGB). The Frankfurt a.M. Regional Court and the Frankfurt a.M. Higher Regional Court essentially upheld the plaintiff's claim. The defendant was ordered to pay the remaining remuneration due to the free termination.
Decision
The BGH clarified the following on appeal:
The defendant was not entitled to a special right of termination pursuant to Sec. 650r (1) BGB. The Federal Court of Justice (BGH) clarified that the special termination right of the purchaser pursuant to Section 650r (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), in accordance with the wording, only applies after submission of the planning basis together with the cost estimate and not already in the preceding period. The purchaser must be provided with documents (written documentation) which, according to their content, can be considered as a basis for planning together with a cost estimate in accordance with § 650p para. 2 sentence 2 BGB. The objective must be to obtain the purchaser's consent. A special right of termination pursuant to Section 650r (1) BGB was therefore not (yet) possible for the defendant in the present case. The classification as a free termination pursuant to § 648 BGB was correct.
However, in the present case the remuneration of the engineer was to be limited. The BGH later eliminated the differences between a free termination according to § 648 BGB and the special termination according to § 650r para. 1 BGB on the legal consequences side. Despite free termination, the engineer can only demand his remuneration up to the fictitious point in time at which termination would have been possible in accordance with Section 650r (1) BGB.
"If a purchaser has already given notice of termination independently of this, it can be assumed on the other hand that he would have taken this option of termination all the more.“
This is surprising in so far as this cannot be derived from the actually applicable provision § 648 BGB. This follows rather from the sense and purpose of the regulation of the § 648 S. 2 BGB, which as a compensation of the free possibility of the customer to dissolve the contract wants to prevent that the architect/engineer is deprived of advantages from the concluded contract, but should not enable him to draw advantages from the termination (with reference to BGH, judgment of 21.12.1995 - V II ZR 198/94).
It must therefore be borne in mind that the statutory target-setting phase, including the right of special termination, also applies without an express agreement and can restrict the planner's fees in the event of free termination - if it has not previously been waived in an individual contract.
Düsseldorf, June 22, 2023
Lawyer Dennis Wiegard
