In practice, it is not uncommon for the client of a building - usually in order to save costs - to carry out his own work on it. The demarcation of the individual construction works in the bill of quantities, which have to be provided by the contractor and the client (interface), must always be carried out very carefully, as otherwise individual items are either forgotten or taken into account twice. If this careful delimitation is not carried out and the building later has defects, the time-consuming and cost-intensive dispute between the parties involved as to whose area of responsibility these defects fall into is regularly pre-programmed.
In its decision of 15 June 2021 (case no. 28 U 1262/21), the OLG Munich points out that the contractor must provide all services in order to bring about the contractually owed quality - in this case the achievement of the KfW-40 standard. Without an explicit reference to this effect in his offer, the contractor cannot claim that the client would have had to provide his own services.
The defendant contractor had offered to build a house for the plaintiffs. The defendant's offer consisted of various individual components (for example, cellars). The detailed description of the house offered also contained a single item according to which the property had to be built as a KfW-40 house. The description of the basement included a note to the plaintiffs that they had to protect the exterior waterproofing against moisture themselves. After acceptance, the plaintiffs complained that the promised standard of a KfW-40 house did not exist. The defendant defended himself with the objection that a corresponding insulation would have been necessary for this standard, which the plaintiffs had not provided themselves. Therefore, they were partly to blame.
The OLG Munich rejects this objection of the defendant. According to the contract, the defendant would have been obliged to provide all necessary services to achieve the promised KfW-40 standards. Even though the offer was composed of various individual items, the plaintiffs, as reasonable recipients, could only understand it in the opinion of the OLG Munich as meaning that the assured quality - KfW-40 - referred to the entire building and not only to individual parts of it. The defendant had described the energy quality of the building and even demanded an additional fee for the energy optimisation, so that the plaintiffs did not have to expect to receive only a partial service from the defendant and to have to provide additional personal services themselves. In addition, the OLG Munich found that the defendant's offer with regard to the external sealing contained a clear reference to the plaintiffs' own work, whereas such a reference to the insulation was missing. The defendant was not allowed to sell the plaintiffs a KfW-40 house that only became such through the plaintiffs' own contribution.
In this case, the dispute about the content of the bill of quantities and the performance to be provided by the contractor thereafter (construction target) was in favour of the plaintiff clients. The OLG Munich ruled in favour of the plaintiffs that without an explicit reference in his offer or his bill of quantities to the client's own work, the contractor is obliged to provide all necessary services to achieve the contractually agreed quality with regard to the overall building in order to construct a functional building for the client as a whole. Therefore, careful examination, coordination and drafting of the bill of quantities is very important for both sides of such a construction contract if the contractor is not to provide all services, but the client provides individual trades as own work.
Axel Kötteritzsch, lawyer
Dusseldorf September 21, 2021