International Construction Law Review
HOW MUCH SCOPE REMAINS FOR THE LEGISLATURE IN REFORMING SECTION 651 BGB? – GERMAN WORK SUPPLY CONTRACTS IN LIGHT OF SUPRANATIONAL LAW
JULIAN CHRISTMANN*
1. INTRODUCTORY REMARKS
“The provisions of sale of goods law are applicable to a contract dealing with the supply of movable things to be produced or manufactured.” Since 1 January 2002, this is the wording of section 651 sentence 1 of the German Civil Code (hereafter “BGB”), whose title now reads “Application of sale of goods law”. The full text of section 651, BGB is as follows:
“The provisions of sale of goods law are applicable to a contract dealing with the supply of movable things to be produced or manufactured. Section 442(1) sentence 1 also applies to these contracts if the defect is caused by the material supplied by the customer. To the extent that the movable things to be produced or manufactured are not fungible things, sections 642, 643, 645, 649 and 650 apply, subject to the proviso that the applicable point of time under sections 446 and 447 takes the place of acceptance.”
Accordingly, if a contractor manufactures a movable object that it intends to deliver to the purchaser, sale of goods law shall apply. Due to the principle of contractual freedom as enshrined in Article 2(1) of the German Constitution, a contract is specified by the substantive provisions on which the parties agree. It thus follows that parties can supplement or change the standard pattern of section 651 sentence 1 BGB so that one quickly faces the borderline between a purchase agreement (section 433 BGB) and a contract to produce a work (section 631 BGB, “Werkvertrag”)1. Those cases necessarily need to be distinguished, which, even after section 651 BGB had been redrafted, is still problematic.
For the first time since more than eight years after the contentious provision was enacted, the German Federal Supreme Court (hereafter “BGH”) gave its view on the distinction between the two different types of contracts in its decision of 23 July 20092. Further debate arose only on 25 February 2010 when the European Court of Justice (hereafter “ECJ”) was seized with a question on international jurisdiction. In this case, the ECJ had to decide on an issue which, again, was dependent on the legal assignment of contracts for the
*Student research assistant at the Institute for Procedural Law, Philipps University of Marburg. The author wishes to thank Prof Dr Voit for his encouragement and continuous support.
1 Note that the BGB differentiates between contracts to produce a work (sections 631 et seq BGB) on the one hand and service contracts (sections 611 et seq BGB) on the other hand.
2 BGH NJW 2009, 2877.
Pt 2] German Work Supply Contracts in Light of Supranational Law
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