Agenda Agenda

Agenda

• Agenda

• Regulations for Building Work in the German Law

• Who can be a Building Expert in Germany?

• Fields of Activity

• Private Expert‘s Report for Building Owners

• Arbitration Report in the Case of Arbitration Clauses

• Building Expert‘s Report for a Court

Regulations for Building Work in the German Law (1)

• Regulations for Building Work in the German Law (1)

• Contract for Work and Services § 631 BGB – German Civil Code very general contract (also for transport, repair, maintenance), not specific for construction of buildings

• VOB (Vergabe- und Vertragsordnung für Bauleistungen) includes three parts:

• Part A: General conditions for the public procurement of building work

• Part B: General conditions for the execution of building work

• Part C: General technical conditions for the execution of building work

Regulations for Building Work in the German Law (2)

• Regulations for Building Work in the German Law (2)

• What is the VOB?

• No Written Law enacted by the Deutscher Vergabe- und Vertragsausschuss für Bauleistungen (DVA): private organisation since 1920

• No Common Law too many modifications during the years First version: 1926 Modifications in: 1952, 1973, 1979, 1988, 1990, 1992, 1996, 1998, 2000, 2002 and 2006

• General Terms and Conditions regulated by § 305 BGB

Regulations for Building Work in the German Law (3)

• Regulations for Building Work in the German Law (3)

• Fields of Application of the VOB

• Public Bodies must apply the VOB/A, VOB/B and VOB/C

• Private Building Owners no duty to apply the VOB, but they can include the VOB in the contract voluntarily seldom VOB/A for procurement often VOB/B for the contract

• Only applicable for Construction Contracts not applicable for planning contracts, architect contracts, general contractor and design contracts, development contracts

Regulations for Building Work in the German Law (4)

• Regulations for Building Work in the German Law (4)

• No Specific Regulations for Building Experts

• § 404 ZPO – German Civil Procedure Code: general article for experts, not specific for building experts

• Only applicable if a court appoints an expert to prepare a report

• Not applicable for private organisations

• The preferred experts for a court are the publicly appointed and sworn-in experts

• From a publicly appointed and sworn-in expert experience an expertise can be expected

• Only if there are no publicly appointed and sworn-in experts the court can appoint other experts

Who can be a Building Expert in Germany? (1)

• Who can be a Building Expert in Germany? (1)

• Everybody with Technical Experience and Expertise can be a Building Expert in Germany

• Most building Experts are publicly appointed and sworn-in building experts

• Which organisations have the right to publicly appoint a building expert?

• Only public bodies (not private organisations): - IHK: Chambers of Industry and Commerce - HwK: Chambers of Craft Business - Chambers of Architects - Chambers of Engineers

Who can be a Building Expert in Germany? (2)

• Who can be a Building Expert in Germany? (2)

• General Rules for the Public Appointement of Building Expert by Institut für Sachverständigenwesen (IfS) in Germany – Institute for Experts

• Goal: high qualitity of building experts in Germany

• General rules for the examination: oral (always) and written (sometimes) examination by an examination board (at least two persons)

• Profound knowledge in specific technical matters

• General knowledge of the german legal system

• Personal and economic independence for impartial reports

• Duty to continuing professional development

Fields of Activity

• Fields of Activity

• Three Main Fields of Activity

• Private expert‘s reports for building owners in case of possible or probable building defects

• Arbitration reports for the parties in case of an arbitration clause in construction contracts

• Expert‘s reports for a court in case of a dispute between two parties

Private Expert‘s Reports for Building Owners

• Private Expert‘s Reports for Building Owners

• Case: Building Defects are Possible or Probable

• The building owner will be obliged by a construction contract to pay the total price to the construction company if he accepts the building work (§ 641 BGB)

• The building owner will be obliged to accept the building work, if there are no or only negligible defects (§640 BGB)

• The building owner will ask a building expert to check the building, if building defects are possible or probable

• The building owner and the building expert enter into a private contract

• The goal of the private contract is a building expert‘s report

• The building expert‘s report is essential for the building owner to come to a decision what to do at the next step

Arbitration Reports for the Parties of a Construction Contract

• Arbitration Reports for the Parties of a Construction Contract

• Case: Arbitration Clause in a Construction Contract

• Many private construction contracts contain arbitration clauses

• The goal of arbitration clauses is to avoid, that the parties have to go immediatly to a public court in case of a dispute

• The parties have to appoint an expert on friedly terms If the parties do not agree, a third person or organisation with complete neutrality has to appoint the expert

• Courts of arbitration are private and have own rules: - quick and closed for the public - slightly more expensive, but only one instance

Expert‘s Reports for a Court

• Expert‘s Reports for a Court

• Case: Dispute between the two Parties of a Construction Contract

• Usually in Germany the Landgericht (with three judges) as first instance has the jurisdiction over disputes of building contracts (value in dispute more than 5.000.- €)

• Often the court members will not be able to judge, if a building defect really exists or not (no legal but technical problem)

• The court appoints an expert to answer to the questions of the court (no private contract)

• Often the expert‘s report is the basis for the court‘s final decision

Prof. Dr. Andreas Saxinger

• Prof. Dr. Andreas Saxinger

• Hochschule für Wirtschaft und Umwelt Nürtingen-Geislingen

• Parkstraße 4

• D-73312 Geislingen/Steige

• phone: [phone] /-543

• email: [e-mail]