In 2021, there were again building law judgments from a number of higher regional courts, which revolved around disputes about the remuneration for construction work.
Entitlement to additional payment due to changed services
The legal dispute OLG Cologne, judgment of February 3rd, 2021 – 11 U 136/18, dealt with the remuneration for changed and additional services. The contractor charged these using the so-called Kobion price formula. This rule of thumb means: „A good price stays a good price, a bad price stays a bad price.“ Put simply, this expresses the fact that in the event of additional services due to required changes, the agreed contractual price level should be retained.
The client has requested the additional services, which he was entitled to according to Sec. 1 para. 3 and 4 of the VOB/B (procurement and contract regulation for construction work – part B). The building contractor’s claim for additional remuneration results from Sec. 2 para. 5 and 6 VOB/B.
The signing off of hourly wage slips is not an hourly wage agreement
The German Civil Code (BGB) does not expressly regulate the remuneration of hourly wage work. According to the case law of the BGH, the contractor only has to explain how many hours have been worked. On the other hand, it is not necessary to state which working hours were incurred on which days for which activities. Time sheets or receipts are also not required.
However, because billing by the hour can pose a significant financial risk for the client, the VOB/B provides special regulations for this. Hourly billing is therefore only permissible if this has been expressly agreed before the work is carried out (Sec. 2 para. 10 VOB/B). According to Sec. 15 para. 3 VOB/B, the contractor must report the execution of hourly wage work before the start and submit daily or weekly hourly wage slips for the work performed.
The Higher Regional Court of Cologne ruled on January 4th, 2021 – 17 U 165/19 in a case on the billing of hourly wage work, in which the contractor claimed that an order confirmation, among other things, for „hourly wage work with time sheet for unforeseeable work“ was sent to the client have, but the client denied receipt. Since neither receipt nor an implied assignment could be evidenced, the Cologne Higher Regional Court rejected the claim. According to the court, even the signature of the hourly wage slip is not sufficient for a subsequent, tacit agreement on hourly wage work.
Written form is not a prerequisite for payment
According to the case law of the BGH, the provision of additional services does not require a written order from the client. The Munich Higher Regional Court clarified this again in its judgment of July 21, 2021 – 20 U 5268/20, as this constitutes an unreasonable disadvantage for the contractual partner. The customer’s interest in cost clarity, cost security and protection against surprises is not sufficient to allow him to receive the service without monetary compensation.
In this respect, the difference to the legal situation for hourly wage work should be emphasized (cf. Cologne Higher Regional Court, judgment of January 4th, 2021 – 17 U 165/19), because hourly wage work is exceptional in the VOB/B and the contractor bears the burden of proof that the hourly wage payment has been agreed.