construction contract
noun · Bauvertrag
Since 1 January 2018 the Bauvertrag has its own set of provisions, §§ 650a ff. BGB, sitting on top of the general law of contracts for work. The most consequential of them is the employer’s power to order changes unilaterally, which no English construction contract grants without an express variation clause, and which cannot be drafted away in standard terms.
Which translation, when
Why
Construction contract is the Bauvertrag, and a current translation has to know that German law only acquired a dedicated regime for it on 1 January 2018. Until then a building project ran on the general law of contracts for work, supplemented in practice by the VOB/B, the standard conditions the construction industry drafted for itself. The reform of 28 April 2017 inserted §§ 650a to 650v BGB and gave the field a statutory backbone. The definition is functional: a Bauvertrag is a contract for work about the construction, restoration, removal or reconstruction of a building, an outdoor installation or part of one, and the special rules apply on top of the general ones, so the parties keep the names Unternehmer and Besteller that the law of contracts for work gives them rather than becoming contractor and employer in the English sense. What the special rules add is the part English lawyers should read first. The employer may demand changes and, if no agreement is reached within the statutory period, order them, with the price adjusted accordingly, and the details belong to the variation order entry. Disputes about that power can be taken to an interim injunction. The builder has statutory security, both a security interest in the land and a claim to security from the employer. Where acceptance is refused, the condition of the works can be formally recorded. And termination of a Bauvertrag requires written form. Four neighbouring contract types carry their own chapters, the consumer building contract, the architect’s and engineer’s contract and the developer contract, so a document should be placed before the general term is used.
Typical mistakes
- The statutory regime for construction contracts dates from 2018, so older sources describe a position governed only by the general law of contracts for work.
- The parties are Unternehmer and Besteller under the law of contracts for work, so importing the English contractor and employer roles can misname them in a German clause.
- The VOB/B are contract terms and not statute, so they apply only if validly incorporated and remain subject to review.
What matters
Preparing a German building contract for a foreign client: the draft should identify which of the four statutory contract types applies, keep the Unternehmer and Besteller terminology, and state expressly whether the VOB/B are incorporated.
What the machine misses
Machine output for construction contract gives Konstruktionsvertrag or Bauauftrag, neither of which the Civil Code uses, and the statutory type is the Bauvertrag of §§ 650a ff. BGB with its own rules on changes, security and termination; the invented wording also hides that the regime is only in force since 2018 and that the VOB/B are terms rather than law.
Examples
| a construction contract | ein Bauvertrag |
| the contractor and the employer | der Unternehmer und der Besteller |
| a consumer building contract | ein Verbraucherbauvertrag |
| termination requires written form | die Kündigung bedarf der Schriftform |