International Construction Law Review
UNFORESEEABLE GROUND (INCLUDING WATER) CONDITIONS—PRINCIPLE AND PRACTICE UNDER GERMAN AND RELATED LAW
WOLFGANG ROSENER
Gaedertz Rechtsanwälte, Berlin
Introduction
In Germany, Austria and Switzerland the law and the model conditions impose the building ground risk on the client, provided the contractor has discharged any obligations to examine the building ground and to draw the client’s attention to any problems. Often successfully, clients attempt in contractual practice to shift the risk to the contractor. The admissibility of such deviations from the statutory model is limited; they can be ineffective because of a violation of public policy or for other similar reasons.
Germany—Building ground and building ground risk
Definitions
- 1. The German term “Grund” 1 corresponds with the English term “ground”. In connection with construction law, the term used is “Baugrund”. Neither in the Bürgerliches Gesetzbuch (BGB, Civil Code) nor in the Verdingungsordnung für Bauleistungen (VOB, official translation: Construction Contract Procedures), which will be discussed later, is there any definition of “Baugrund”, that is Building Ground. In the legal literature, the following definition can be found:
- Thus, Baugrund is the generic term which covers all of the properties of the construction site which are important to the completion of the building project, i.e. including any contamination or pollution from earlier industrial use.
- Baugrund is also a mountain through which a tunnel is built.2
- 2. Building on this, the term “Baugrundrisiko” , building ground risk exists, defined as follows, but again only in the legal literature:
- The regional court of appeal of Munich very concisely formulated this definition for legal practitioners4 :
- At any rate it is generally accepted that the building ground risk is a so-called special risk, to be distinguished from the general building risk, and requires special consideration.
Who bears the building ground risk ?
The starting point for the applicability of the provisions of the law and of the VOB concerning the question of who bears the building ground risk is the determination that neither the client nor his experts, i.e. the architect, the geophysicist, the geologist, the hydrologist, nor later the contractor could foresee the deviations of the building ground from the performance specifications found during the construction work, i.e. that the client’s obligation to examine and describe the building ground as well as the contractor’s obligation to examine the building ground and to point out any problems were fully discharged by both parties.
In a nutshell: “No better examination was possible”. In the event of a dispute, this is the matter of which the court must be convinced. If neither party is thus responsible for (contributory) negligence, there is a case of a building ground risk—which shows that the term building ground risk corresponds with the subject of this contribution, namely unforeseeable ground conditions.
That this risk must be borne by the client5
follows in Germany from the law and the VOB; to justify this, it is therefore not necessary to resort to the sphere theory, which is sometimes quoted (“The building ground risk falls into the client’s sphere”).
The decisive provisions are § 644 and § 645 from the rules of the BGB dealing with contracts for work. § 645 section (1) sentence 3 reads as follows:
3 Marbach, ibid.,
with further references.
4 Judgment, 15 October 1996, case U 5857/95.
5 A leading case (Sandlinsenfall,
the “sand lens case”) regional court of appeal of Cologne, judgment 16 November 1982, see Englert/Grauvogl/Maurer, supra,
note 2, p 449, 450, note 547.
[2000
The International Construction Law Review
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