Facts of the case:
The client commissioned the contractor with demolition work in accordance with VOB/B. The contractor offered a unit price of € 462 per tonne net for the specified quantity of 1 tonne under item 02.02.0050 "Disposal of building rubble, waste code number 170106". In fact, the demolition work did not result in the calculated 1 tonne, but 83.92 tonnes of building rubble. A dispute then arose between the client and the contractor regarding the new unit price for the additional quantities. The contractor referred to the originally agreed unit price, which was favourable for him, while the client only considered a unit price of 109.88 per tonne to be appropriate. As the parties were unable to reach an agreement, the contractor brought an action for payment of the remaining remuneration. The Regional Court of Hanover set the EP at € 149.88 per tonne. The contractor appealed against this. The Higher Regional Court of Celle then set the EP at €150.40 per tonne. The contractor appealed against this. However, this was unsuccessful.
Decision
According to the new decision of the BGH of 8 August 2019 - VII ZR 34/18 - the new unit price for excess quantities within the meaning of Section 2 (3) No. 2 VOB/B is no longer calculated on the basis of the original calculation (pre-calculated method), but on the basis of the actual costs required plus appropriate surcharges.
The BGH justifies this as follows:
According to the BGH, Section 2 (3) No. 2 VOB/B does not regulate how the remuneration adjustment is to be made in the event of an increase in quantity. The wording of the standard merely states that the new price is to be agreed taking into account the additional or reduced costs. The VOB/B thus places the responsibility for the new price determination in the hands of the contracting parties. They are to negotiate a new price taking into account the changed circumstances. If no agreement is reached between the parties, this gap must be closed by way of supplementary interpretation of the contract. Thus, the new unit price for additional quantities within the meaning of Section 2 (3) No. 2 VOB/B is determined on the basis of the costs actually required plus appropriate surcharges.
According to the BGH, the purpose of Section 2 (3) No. 2 VOB/B is to ensure that performance and consideration are appropriately balanced even if the quantities provided for in the unit price are exceeded, thus realising the best possible balance between the mutual interests of the contracting parties. In addition, the link to the actual costs required enables a realistic assessment, as these can be easily determined. This best reflects the reality of costs.
Summary
The change in case law of the BGH regarding the assessment of the new price no longer on the basis of the original calculation, but on the basis of the actual costs, does not relate to Section 2 (5) and (6) VOB/B, but only to Section 2 (3) No. 2 VOB/B. It remains to be seen whether this also entails a change in the interpretation with regard to the adjustment of remuneration in Section 2 (5) and (6) VOB/B. At least the similar wording of § 2 para. 3 and para. 5 VOB/B speaks in favour of this.
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Nelly Blankenhorn, Stuttgart
BREYER ATTORNEYS AT LAW
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