Almost EUR 230,000 claimed — dismissed in two instances
A contractor working under a VOB/B contract could not carry out its works as planned because preceding trades were behind schedule. It quantified the additional costs at almost EUR 230,000 and sued the employer. The Regional Court of Frankfurt dismissed the claim and the Higher Regional Court confirmed the dismissal (OLG Frankfurt, decision of 22 June 2026, case 21 U 32/25). Not because there was no disruption — but because the claim was based on the wrong ground and calculated the wrong way.
The employer is generally not liable for delays caused by preceding contractors
Damages under section 6 para. 6 sentence 1 VOB/B require that the obstruction results from a culpable breach of a contractual duty by the employer — circumstances that merely fall within the employer’s sphere of risk are not enough. This is the crux: according to the Federal Court of Justice (judgment of 19 September 2024, VII ZR 10/24), making preceding works available on time and coordinating the trades is, absent a specific contractual provision, not a contractual duty but a mere incidental obligation (Obliegenheit). Its breach does not trigger liability for damages. The Frankfurt court applied that line strictly: nothing showed that the employer had contractually undertaken to provide the preceding works on time, so the damages claim failed.
The position may differ where the employer falls behind with its own contractual deliverables — for instance handing over execution documents. Whether section 3 para. 1 VOB/B creates a genuine contractual duty in this respect has not been finally resolved by the Federal Court of Justice. Prudent contracts therefore spell such duties out expressly, with deadlines.
A notice that works cannot proceed is not a variation instruction
Contractors sometimes try another route: the employer notified the obstruction and issued revised schedules, so it “ordered” a change of the construction time and owes additional remuneration under section 2 para. 5 VOB/B. The Federal Court of Justice has closed that door. Informing the contractor that an obstruction exists and that the works cannot currently be carried out is not a legal instruction — nor are updated construction schedules that merely react to the disruption. The Frankfurt court confirmed this for the case of a preceding trade running late. Section 2 para. 5 VOB/B is no basis for such claims.
What remains: compensation under section 642 German Civil Code — no fault required, but strict conditions
If the employer breached no contractual duty, the contractor is left with the compensation claim under section 642 of the German Civil Code (BGB), applied in VOB/B contracts via section 6 para. 6 sentence 2 VOB/B. Its advantage: fault is irrelevant. It suffices that the employer failed to perform a necessary act of cooperation and thereby came into default of acceptance (section 293 BGB). The hurdles lie elsewhere. Compensation is limited to the period of the default of acceptance — and covers only the unproductive holding of production resources: personnel, equipment and capital. The starting point of the calculation are the remuneration shares attributable to those idle resources, including the shares for general overheads, risk and profit. Later wage and material price increases after the default period are not covered.
The most common mistake: overheads and profit calculated in the abstract
In the Frankfurt case the contractor calculated which general overheads (AGK), site overheads (BGK) and profit it had been unable to earn. What was missing was the foundation: a statement of which specific resources stood idle in which period of default. Without that, the court could not even estimate a minimum compensation. There was a second problem: part of the capacity had — undisputedly — been deployed on other, revenue-generating sites. For those periods there is no compensation at all. The argument that the overheads and profit calculated for this project were not earned elsewhere did not persuade the court: resources earning money on another site are not “still unproductive”.
The disruption notice: without it, almost nothing works
The decisive and chronically neglected formal step is the disruption notice (Behinderungsanzeige) under section 6 para. 1 VOB/B. A contractor who considers itself obstructed must notify the employer immediately and in writing. The sanction is severe: without the notice, obstructions are taken into account only if their existence and effect were obvious to the employer. Moreover, the compensation claim under section 642 BGB itself depends on the notice — section 6 para. 6 sentence 2 VOB/B says so expressly. A good notice states specifically: what obstructs the works, since when, which work sections are affected and what the consequences for the schedule are. Once the obstruction ends, the works must be resumed without delay and the employer must be informed.
Extension of time and the emergency exit from the contract
Independently of money, an obstruction from the employer’s sphere of risk extends the execution deadlines (section 6 para. 2 no. 1 lit. a VOB/B) — calculated from the duration of the obstruction plus an allowance for remobilisation and a possible shift into a less favourable season (section 6 para. 4 VOB/B). This is the shield against contractual penalties. If an interruption lasts longer than three months, either party may terminate the contract in writing (section 6 para. 7 VOB/B) — executed works are then settled at contract prices, as we explain in our article on settling a terminated construction contract. A separate route is section 643 BGB: setting the employer a deadline to cooperate, upon whose fruitless expiry the contract is deemed cancelled. We cover it in our article on termination by the contractor.
Document the disruption site-specifically — that is how these cases are won
German courts require a presentation tied to the actual course of construction (bauablaufbezogen): no summary tables, but specifics. In practice that means keeping a standstill diary: which crews and which equipment could not work on which days on which work front and why, what was shifted to other sites and when, which activities of the schedule moved. Add the paper trail: disruption notices, requests to clear the work front, minutes of site meetings. This documentation decides the case — without it even an obvious standstill remains unprovable.
The site is blocked — your action plan
Notify the obstruction in writing immediately (section 6 para. 1 VOB/B): what blocks the works, since when, with which schedule consequences. Update the notice while the obstruction continues and report resumption. Keep a standstill diary: crews, equipment, days, blocked work front. Record which capacities were moved to other sites and when. Derive compensation from the specific idle resources, not from lost overheads. Secure the extension of time (section 6 paras. 2 and 4 VOB/B) — protection against penalties. Consider termination if the interruption exceeds three months (section 6 para. 7 VOB/B). In the next contract: turn coordination and site availability into genuine employer duties with deadlines.
Frequently asked questions
Is the employer liable when the preceding trade is late?
Generally not in damages. Under the Federal Court of Justice’s case law, providing preceding works on time and coordinating trades are incidental obligations, not contractual duties, while section 6 para. 6 sentence 1 VOB/B requires a breach of duty. What remains is compensation under section 642 BGB.
What must I do immediately when the site comes to a standstill?
File a written disruption notice without delay (section 6 para. 1 VOB/B) stating cause, start and schedule impact. Without it you lose both the extension of time and the compensation claim, unless the obstruction was obvious.
What can I recover if I prove the standstill?
Adequate compensation under section 642 BGB for the duration of the employer’s default of acceptance: the remuneration value of idle personnel, equipment and capital, including shares of overheads, risk and profit. Later cost increases are not covered.
I moved my crew to another site — do I still get compensation?
Not for the periods in which the resources generated revenue elsewhere. That the overheads calculated for this project were not earned there changes nothing (OLG Frankfurt, 21 U 32/25).
Can I simply claim my lost overheads and profit?
No. Courts reject such abstract calculations. First show the specific idle resources and periods, then apply the attributable shares of overheads, risk and profit.
How long must I stay in a blocked contract?
If the interruption lasts longer than three months, either party may terminate (section 6 para. 7 VOB/B). Independently, the contractor may set a cooperation deadline under section 643 BGB, after which the contract is deemed cancelled.
Does the employer’s delay notification entitle me to extra remuneration?
No. Notifying an obstruction and issuing updated schedules is not an instruction within the meaning of section 2 para. 5 VOB/B (Federal Court of Justice, VII ZR 10/24).
This overview is based on sections 6 and 3 VOB/B, sections 642, 293 and 313 of the German Civil Code (BGB) and on the decision of the Higher Regional Court of Frankfurt am Main of 22 June 2026, 21 U 32/25, as well as the judgment of the Federal Court of Justice of 19 September 2024, VII ZR 10/24. Legal status: 24 July 2026. This article is for general information and does not replace legal advice in an individual case.