prof. dr. andreas saxinger the building expert in the german law

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Prof. Dr. Andreas Saxinger

The Building Expert in the German Law

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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

Prof. Dr. Andreas Prof. Dr. Andreas SaxingerSaxinger

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Regulations for Building Work in the German Law (1)

Contract for Work and Services§ 631 BGB – German Civil Codevery general contract (also for transport, repair, maintenance), not specific for construction of buildingsVOB (Vergabe- und Vertragsordnung für Bauleistungen) includes three parts:Part A: General conditions for the public procurement of building workPart B: General conditions for the execution of building workPart C: General technical conditions for the execution of building work


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What is the VOB?No Written Lawenacted by the Deutscher Vergabe- und Vertragsausschuss für Bauleistungen (DVA): private organisation since 1920

No Common Lawtoo many modifications during the yearsFirst version: 1926Modifications in: 1952, 1973, 1979, 1988, 1990, 1992, 1996, 1998, 2000, 2002 and 2006General Terms and Conditionsregulated by § 305 BGB


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Fields of Application of the VOBPublic Bodiesmust apply the VOB/A, VOB/B and VOB/CPrivate Building Owners no duty to apply the VOB, but they can include the VOB in the contract voluntarilyseldom VOB/A for procurementoften VOB/B for the contractOnly applicable for Construction Contractsnot applicable for planning contracts, architect contracts, general contractor and design contracts, development contracts


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No Specific Regulations for Building Experts§ 404 ZPO – German Civil Procedure Code:general article for experts, not specific for building expertsOnly applicable if a court appoints an expert to prepare a reportNot applicable for private organisationsThe preferred experts for a court are the publicly appointed and sworn-in expertsFrom a publicly appointed and sworn-in expert experience an expertise can be expectedOnly if there are no publicly appointed and sworn-in experts the court can appoint other experts


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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


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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


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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


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Private Expert‘s Reports for Building Owners

Case: Building Defects are Possible or ProbableThe 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 probableThe building owner and the building expert enter into a private contractThe 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


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Arbitration Reports for the Parties of a Construction Contract

Case: Arbitration Clause in a Construction ContractMany private construction contracts contain arbitration clausesThe goal of arbitration clauses is to avoid, that the parties have to go immediatly to a public court in case of a disputeThe parties have to appoint an expert on friedly termsIf the parties do not agree, a third person or organisation with complete neutrality has to appoint the expertCourts of arbitration are private and have own rules:- quick and closed for the public - slightly more expensive, but only one instance


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Expert‘s Reports for a Court

Case: Dispute between the two Parties of a Construction ContractUsually 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


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Thank you for your Attention!Thank you for your Attention!

Prof. Dr. Andreas Saxinger

Hochschule für Wirtschaft und Umwelt Nürtingen-Geislingen

Parkstraße 4

D-73312 Geislingen/Steige

phone: 0049/7331/22-584 /-543

email: [email protected]

prof. dr. andreas saxinger the building expert in the german law

Documents

execution of building

vobcprivate building

german lawregulations

german lawwho

general conditions

german lawagenda regulations

bgb german civil code

general technical conditions