Markus KlettKooperationspflichten im privaten Baurecht

About this book deutschenglish

At the beginning of 2018, the legislator carried out a comprehensive modernization of private building law with the building law reform. Among other things, § 650t of the German Civil Code was introduced.

This regulation aims to strengthen the building contractor's power of supplementary performance by means of an objection by the supervising architect to the client if the building contractor is jointly and severally liable for a construction defect alongside the supervising architect.

The author makes a distinction between joint and several liability and tiered liability in private construction law and points out various problems in this context.

These problems concern, among other things, the restriction of the scope of § 650t of the German Civil Code and monitoring errors by the architect, whereby the application of the provision is excluded in the event of a planning error by the architect. In addition, according to the wording of the regulation, the supervising architect can refuse to provide performance to the client until the client has set the building contractor a reasonable deadline for supplementary performance without success. Accordingly, the protection of the building contractor's authority for the supplementary performance lies in the hands of the supervising architect, so that it can be bypassed by not exercising the objection.

It is also unclear in private construction law how the secondary debtor can seek regress from the primary debtor in the event of tiered liability.

The author discusses various ways of solving these problems using the existing legal situation. The author shows the reasons why these solutions are to be regarded as inadequate from his point of view. In the following, the author examines further solutions to the problems identified by means of cooperation obligations. Here the author presents the necessity and the legal basis for cooperation obligations in private building law between the client, the building contractor and the architect.

The author develops specific cooperation obligations using game-theoretical considerations, which are necessary in addition to the existing legal situation in order to ensure a balance between the interests of those involved in the construction.

The discussions are accompanied by case studies to support the explanations.