VOB/B Section 2: payment and variation claims from tender to final invoice

We do not follow the numbering of the ten subsections but the path of a construction project: tender, conclusion of the contract, execution, variation, invoicing and, if there is no other way, dispute. The reason is practical. Many variation lawsuits are not lost on the calculation but months earlier, in a project phase in which nobody was yet thinking of litigation. Anyone who knows when each part of sec. 2 VOB/B takes effect can set the course while that is still possible.

One distinction first. Whether the employer (Auftraggeber) may unilaterally require a change or additional work is governed by sec. 1(3) and (4) VOB/B. Section 2 VOB/B concerns the consideration, that is, the remuneration.¹ The limits of the employer’s right to give instructions are therefore to be found in sec. 1, the consequences for the price in sec. 2.

I. Before the contract: tender and calculation

The form of remuneration allocates the risks

The choice of the form of remuneration already determines who bears which risk. Under sec. 2(2) VOB/B, the default is invoicing at unit prices according to the quantity actually built, unless the parties agree otherwise. The provision itself names the lump sum, hourly rates and cost reimbursement as alternatives.²

• Unit-price contract (Einheitspreisvertrag): The bill of quantities (Leistungsverzeichnis) contains items with estimated quantities (Vordersätze), and payment follows the measurement (Aufmaß). If more or less is ultimately built than estimated, this therefore works against or in favour of the employer, within the limits of sec. 2(3) VOB/B. The contractor (Auftragnehmer) answers for the adequacy of its unit prices and for its own productivity.
• Detailed lump-sum contract (Detail-Pauschalvertrag): A detailed description of the works is awarded for a total price. In essence it differs from the unit-price contract only in that no measurement is taken.³
• Global lump-sum contract (Global-Pauschalvertrag): The works are described functionally, classically in turnkey construction. The contractor takes on the detailed design and with it the risk that more material and labour are needed to achieve the described result than expected.
• Hourly-rate contract (Stundenlohnvertrag): Payment is for the time spent, not for the result. Because the productivity risk thus in fact lies with the employer, sec. 2(10) and sec. 15 VOB/B impose special requirements (see Part IV).
• Cost reimbursement (cost plus fee): The employer reimburses the proven costs and pays an agreed mark-up. It thereby assumes the price risk for material and labour and gains insight into the costs. Opinions differ on whether this contract form is experiencing a renaissance in times of fluctuating prices or will remain a marginal phenomenon.⁴

Even which form of remuneration applies may be in dispute in court. If the contractor invoices at unit prices and the employer relies on a lump-sum price, the contractor must plead and prove the unit-price agreement. The OLG Brandenburg (Oberlandesgericht, Higher Regional Court of Brandenburg) therefore refused a company payment for additional areas in a roof refurbishment. The contract stated a “fixed remuneration” (Festvergütung) as a total amount and added that this corresponded to a lump-sum remuneration of €20.95 per square metre. That a price adjustment clause elsewhere referred to sec. 2 no. 3 VOB/B (correctly: sec. 2(3)) was not enough for the court. Anyone who wants to invoice by measurement should agree this expressly.⁵

The original tender calculation as the memory of the price

The tender calculation, known as the original tender calculation (Urkalkulation), breaks each unit price down into its components: direct costs of the item, site overheads (Baustellengemeinkosten), general overheads (Allgemeine Geschäftskosten), and risk and profit (Wagnis und Gewinn). As long as everything goes to plan, nobody is interested in it. If a price has to be adjusted, it is often the only document that shows how the price was conceived.

Three later situations depend on it. If quantities fall away, sec. 2(3) no. 3 VOB/B compensates for the overhead allocations that are now spread over a smaller quantity (Part III.1). If the calculation has been deposited as required by the contract, sec. 650c(2) BGB can give the contractor a presumption as to the amount of the variation, although it is disputed whether this also applies in a VOB/B contract (Part V). And where the parties by agreement carry variations forward from the calculation, it decides every single variation price (Part VII).

What the bidder does not write into its prices does not exist for the later adjustment. A case of the Federal Court of Justice (Bundesgerichtshof, BGH) on tree clearing works shows this. The contractor had calculated its costs per tree and deducted from them revenue from the utilisation of the timber, producing a very low unit price. In fact it expected far higher revenue than it had included in the price. When considerably fewer trees had to be felled than tendered, it claimed this further profit expectation as well through the adjustment of the unit price. The BGH accepted only the share of the revenue that had gone into the calculation of the unit price — in translation: “Factors that are not part of the calculation of the original unit price are disregarded when it is adjusted under sec. 2(3) no. 3 VOB/B (2012).” Nor did it make any difference that the contractor had disclosed its calculation before the award.⁶ In practice this means: draw up the calculation completely and comprehensibly, deposit it if the contract so provides, and keep it until all disputes have ended.

Speculative unit prices and their limit

Some bidders price against the bill of quantities. A bidder who expects an item to turn out far larger in reality than tendered puts a high price on it and offsets this elsewhere. The BGH sets a limit to this tactic where such a price is carried forward into a variation. If the resulting price stands in a striking disproportion to the work that comes close to usury, the price agreement may to that extent be contrary to public policy and void (sec. 138(1) BGB). Such a disproportion may exist where the price amounts to “almost eight times the customary and reasonable local price” (our translation) and the excess is also significant in absolute terms and in relation to the contract sum. A reprehensible pursuit of profit is presumed from the disproportion, but the presumption is rebuttable. The excessive price is replaced by the customary remuneration.⁷ Even where the presumption is rebutted, for example by proof of a calculation error, enforcing the excessive price may breach good faith (sec. 242 BGB).⁸ Langen/Berger consider this line mistaken and would resolve such cases through the doctrine of interference with the basis of the transaction (sec. 313 BGB).⁹

Economically, the tactic has lost its appeal anyway. Since the BGH, absent any other agreement, measures the price for excess quantities above 110% by the costs actually required (Part V), an inflated unit price no longer carries over, precisely in the case of the excess quantity. Langen/Berger put it that price speculation thus “vanishes into thin air” (our translation), and Bolz regards such cases as largely settled.¹⁰

Read the tender before you price it

What the bidder promises with its price follows from the tender documents, as a competent bidder was entitled to understand them within the tender period. The bidder need not recognise what only an expert could work out after months of studying the files. Langen/Berger sum this up in the sentence — in translation: “What the bidder does not need to recognise does not even become ‘Bausoll’ [contractual scope].”¹¹

This does not mean the bidder is free to pass over ambiguities. According to the case law of the BGH, a bidder must clarify a description of the works that is insufficient for a reliable calculation before submitting its tender and may not content itself with an assumption favourable to itself. Bolz points out that “incomplete” (lückenhaft) within the meaning of this case law does not refer to a technically incomplete description but to one that is unclear for pricing purposes.¹² By contrast, there is no duty to point out technical errors or gaps in the bill of quantities at the tender stage. The duty to examine and to notify concerns under sec. 4(3) VOB/B begins only with the contract.¹³ And there is no rule of interpretation under which an unclear contract is to be read against the contractor because it did not clarify the ambiguity.¹⁴

This results in a simple division of labour. Searching a design for technical errors is not the bidder’s task. But if it lacks information it needs for its price, it should ask before submitting its tender. A query costs nothing at this stage, an unclear contract a great deal later.

II. Conclusion of the contract: what the price pays for

The contractual scope as the limit of any additional payment

Additional remuneration is only available where what is built departs from what is owed. Practice calls the work owed the Bausoll (contractual scope) and the work actually performed the Bauist.¹⁵ Anyone who cannot reconstruct the Bausoll from the contract documents cannot substantiate a variation (Nachtrag), because they lack the benchmark. As long as the disputed work lies within the Bausoll, sec. 2 VOB/B yields not a single additional euro.

Where the Bausoll ends is a question of interpretation, and the courts read the bill of quantities through the eyes of a competent, reasonable and objective recipient. The Kammergericht (KG, the Higher Regional Court of Berlin) had to decide on painting works on historic timber box windows in a Berlin school. The bill of quantities provided for a renewal coating outside and an overhaul coating inside, but in describing the work steps mentioned neither the outer side of the frames nor the transoms and mullions. The contractor claimed a variation per window for painting them. The court refused. It was recognisable that all exposed timber parts of the windows were to be treated, it would have made no technical or economic sense to exclude subordinate parts, and the specified colour shade was expressly intended for the mullions as well. What the bill of quantities already covers is paid for by the unit prices and cannot form the subject of a variation.¹⁶

What the price pays for is determined by sec. 2(1) VOB/B through a catalogue of sources: the description of the works, the special, additional and additional technical conditions of contract, VOB/C with its general technical specifications (ATV), and finally commercial custom. Two consequences matter in practice. The ancillary works (Nebenleistungen) listed in sections 4.1 of the individual ATV DIN standards are paid for by the price without a separate item. The special works (Besondere Leistungen) listed in sections 4.2, by contrast, only form part of the contractual works if the description of the works expressly mentions them. If the employer requires such work only during execution, it must be paid for additionally under sec. 2(6) VOB/B. Langen/Berger consider prior notice (Ankündigung) exceptionally unnecessary in this case, but advisable.¹⁷

Employers occasionally try to shift special works into the prices across the board. As an example of an invalid clause, Langen/Berger cite the requirement that “openings and chases as instructed by the site manager” (our translation) are to be included in the price.¹⁸ Without quantities and without drawings, such effort cannot be priced. As early as 1987, the OLG München struck down a clause under which the “making and closing of all recesses and chases in foundations, walls, slabs etc. according to drawings and instructions of the site manager” (our translation) was to be owed without separate payment. What mattered was that the scope of the work owed depended on the discretion of the site management and could not be calculated.¹⁹

What is built and under what conditions

The Bausoll has two levels. The construction content (Bauinhalt) describes what is produced: structure, scope, materials, qualities. The construction circumstances (Bauumstände) describe the conditions under which the work is to be carried out: time frame, access to the work area, permitted working hours, supply of electricity and water.²⁰ Both levels rank equally. If the bidder was entitled to assume continuous work and it turns out that installation may only take place at weekends because the facility remains in operation, the Bauist departs from the Bausoll just as it would with a change of material. The same applies if the construction power supply from the employer’s grid promised in the tender conditions is not available.

The ground

The ground is the most frequent subject of dispute. An example: pad foundations are to be excavated for a warehouse. The ground investigation report attached to the tender documents describes medium sand. Below the topsoil the excavator hits cohesive clay with stones, and daily output halves. The employer points to the contractor’s ground risk.

Whether that argument succeeds is a question of contractual interpretation. An attached report can make the ground conditions it describes part of the work owed, but it need not.²¹ The Higher Regional Courts place different emphases. The OLG Naumburg stresses that the developer bears the ground risk and that it is for the developer “to provide an adequate and suitable description of the ground conditions” (our translation).²² If a ground investigation report forms part of the contract, however, it also defines the contractor’s Bausoll. In the Naumburg case, the ground investigation report incorporated into the contract required a frost-resistant road build-up of 75 cm. That thickness was therefore owed, even though the contractor’s tender did not fully provide for it, and only the build-up beyond that was paid additionally.²³ The OLG Hamm, by contrast, has held that additional costs cannot be claimed solely on the general consideration that the developer bears the ground risk. If a method of execution that is suitable in principle fails without the Bausoll or the described ground having changed, this falls within the contractor’s sphere of risk.²⁴ In the case decided, a pipe-jacking machine had broken down during microtunnelling for a gas pipeline. There was no additional payment for recovering and repairing the machine. According to the senate, a duty to pay under sec. 2(5) and (6) VOB/B for damage to equipment caused by a peculiarity of the ground is alien to construction contract law.²⁵ Anyone relying on differing ground conditions must therefore show precisely which description was departed from and cannot rely on the mere catchword of ground risk.

Detailed or functional description: whoever designs bears the design risk

Under a detailed description of the works, the contractor owes what is described. Work that such a description does not contain is as a rule not owed. The contractor carries it out only if it is separately ordered and separately paid for.²⁶ If the employer wants the contractor to perform additional work without additional payment, it must agree this, and the BGH imposes strict requirements on such an agreement.²⁷

Behind this lies a principle that Langen/Berger develop under the heading of functional responsibility: whoever plans the details bears responsibility for the design and its gaps.²⁸ If the bill of quantities and the construction drawings come from the employer, their errors are at its expense, and closing a gap costs it a variation. If the contractor has taken over the detailed design, as in a functionally tendered global lump-sum contract, it bears this risk itself. Its own design decisions then become part of the Bausoll, and if the employer later departs from them, this constitutes a change that must be paid for. Mixed contracts are to be assessed separately for each part.²⁹

The reach of so-called completeness clauses (“the price covers all work required for complete execution”) is disputed. Langen/Berger consider such a clause invalid in standard terms and conditions, at least in a detailed lump-sum contract.³⁰ Bolz, by contrast, sees it as part of the description of the works, which is not subject to review of its content.³¹ The LG Hagen (Landgericht, Regional Court of Hagen) has held invalid a completeness clause imposed by the employer in a detailed lump-sum contract for scaffolding works whose bill of quantities specified scaffold quantities and standing times.³²

When the documents contradict each other

For contradictions between the contract components, sec. 1(2) VOB/B lays down an order of precedence: description of the works, special, additional and additional technical conditions of contract, VOB/C, and finally VOB/B itself. Within the description of the works, according to Langen/Berger, the written text of the bill of quantities prevails over drawings attached without a reference at the appropriate place.³³ Doubts that cannot be removed by interpretation as a rule go against the employer who drew up the documents.³⁴

In public tenders a further aspect comes into play. In case of doubt, the bidder may understand a description of the works tendered under VOB/A as meaning that the employer intends to comply with the requirements of VOB/A for the tender. In the case before the OLG Düsseldorf, the description of the works required the contractor to plan all necessary protective measures against hazards from railway operations itself and to include them in the price of the item. At the same time, the same passage referred, for the protection planning, to a basis that the employer had specified in a separate annex. According to the senate, the employer had thereby also determined the remunerated Bausoll. A clause in the additional conditions of contract that declared protective measures in general to be ancillary works not paid for separately ranked lower and did not apply, because the bill of quantities separately ordered and paid for the protection.³⁵

Success is owed, but not for free

The contractor owes a functional work, even if the agreed method of execution is not sufficient for that.³⁶ It does not follow, however, that it must make good the errors of someone else’s design at its own expense. Langen/Berger distinguish for this purpose between the “performance target” (Leistungssoll) and the “remuneration target” (Vergütungssoll), and Bolz stresses that the contractor need not perform at the agreed price all work that is necessary for the function but not described.³⁷ If the described work is not sufficient for a functional result, the contractor must give notice of this (sec. 4(3) VOB/B), and the employer decides: either it orders the necessary change and pays for it under sec. 2(5) or (6) VOB/B, or it stays with its description and accepts the consequences. If the contractor has properly notified its concerns, it is not liable for the resulting defect (sec. 13(3) VOB/B).

The same pattern applies where new generally recognised rules of technology come into force after conclusion of the contract but before acceptance (Abnahme). The contractor must inform the employer of this and of the consequences, unless they are known to the employer. If the employer requires compliance with the new rules, the contractor can as a rule claim an adjustment of the remuneration under sec. 1(3) or (4) and sec. 2(5) or (6) VOB/B. But the employer can also stay with the agreed execution and so avoid additional costs.³⁸

Lump-sum contract: which quantity information is binding

In a lump-sum contract (Pauschalvertrag), remuneration is in principle detached from the quantity actually built. Quantities stated in the documents are initially for guidance, and checking them is a matter for the bidder, who may request the necessary basic data for this.³⁹ There are, however, statements that are not estimates but express a decision by the employer: two lifts, fourteen air outlets according to the ventilation design, thirty underground parking spaces. If the employer changes such a specification, it is correcting its own design, and the additional or reduced work is invoiced via sec. 2(7) no. 2 VOB/B in accordance with subsections (4) to (6).⁴⁰ The BGH goes one step further:

“Where the employer describes quantities or factors influencing quantities (here: screed thickness in an extra-over item) in a lump-sum contract, these may have been made the basis of the transaction of the contract. This can be assumed in particular if the contractor was entitled to assume that the employer intended to give a certain assurance of a reliable basis for calculation.” (our translation)⁴¹

A second point concerns discounts. If the contractor granted a discount on the main contract, for example for agreeing a lump sum or across the board on all unit prices, the question later arises whether this discount also reduces the variations. According to the BGH, this is a question of interpreting the discount agreement. If, for example, a discount is granted on all unit prices, this suggests that it is also meant to apply to the variation prices still to be formed.⁴² If a clause expressly extends the discount to variations, this is, according to the Kammergericht, a price agreement that is not subject to review of its content.⁴³ For lump-sum contracts Bolz accepts a percentage deduction in the amount of the lump-sum discount, but does not want any deductions for discounts when calculating on the basis of actual costs in a unit-price contract.⁴⁴

Clauses intended to override sec. 2 VOB/B

Employers frequently exclude sec. 2(3) VOB/B in their conditions of contract. This is not invalid from the outset, because the statutory law on contracts for work contains no adjustment of the unit price for quantity deviations. According to Bolz, however, the BGH regards such an exclusion as unobjectionable only as long as it leaves untouched the adjustment for interference with the basis of the transaction (sec. 313 BGB) and claims for fault in contract negotiations (culpa in contrahendo). Whether it does so is examined on the interpretation least favourable to the customer.⁴⁵ For this reason the BGH objected to a clause under which “changes in quantities – even above 10% – … are reserved” and “do not entitle to a price correction” (our translation): on the interpretation least favourable to the customer, it also excludes adjustment under sec. 313 BGB.⁴⁶ An opening under which quantity deviations entitle to price changes insofar as this “has been expressly agreed” (our translation) does not save such a clause. The LG Nürnberg-Fürth, on the interpretation least favourable to the customer, related the reservation only to agreements already made at the conclusion of the contract. It leaves open whether and under what conditions the employer would have to agree to an adjustment later, and therefore it does not narrow the exclusion.⁴⁷

Finally, before any calculation there is a limit that has nothing to do with sec. 2 VOB/B. If the parties agree that part of the remuneration is to be paid without an invoice, the entire construction contract is void (sec. 134 BGB in conjunction with sec. 1(2) no. 2 SchwarzArbG, the Act to Combat Undeclared Work). The contractor then has neither a claim for remuneration nor a claim for compensation of value, and the employer has no claims for defects and cannot reclaim what it has already paid. This also applies if the agreement is made only subsequently. If it concerns only part of the remuneration, the properly invoiced part survives only if the parties had allocated specific individual items of work to it.⁴⁸

III. Execution: when reality departs from the contract

The site reveals where the contract does not fit. For the remuneration it then matters what caused the deviation. Quantities may develop differently from the estimate without anyone’s intervention, the employer may change, add or take away work, the contractor may act without an order, and finally external events may destroy the calculation. Each of these situations has its own rule.

1. The measurement deviates: sec. 2(3) VOB/B in the unit-price contract

Section 2(3) VOB/B applies insofar as unit prices have been agreed for the work. For the lump sum, sec. 2(7) VOB/B takes over this role (below, 2.). The provision covers only changes in quantity that arise without the employer interfering with the Bausoll, typically because the estimated quantities in the bill of quantities were wrongly estimated. If the change is based on an instruction (Anordnung) or on a termination, subsections (5) and (6) or the rules on partial termination apply.⁴⁹

The mechanism has three stages:

• Deviation up to 10%: The contract price continues to apply (sec. 2(3) no. 1 VOB/B). Under the concept of the provision, small excess and shortfall quantities in individual items often offset each other.⁵⁰
• Excess quantity above 110%: For the quantity in excess of this, a new price is to be agreed on request (no. 2). Either side may make the request, including the employer. What results is what Langen/Berger call a “split unit price”: the old price up to 110%, the new one above that.⁵¹ The new price may be lower than the old one if the excess quantity is in fact cheaper to produce.
• Shortfall below 90%: At the contractor’s request, the unit price for the entire quantity actually performed is to be increased (no. 3). The increase is to correspond essentially to the amount by which the costs of site set-up, the site overheads and the general overheads are no longer covered because of the reduced quantity. The employer cannot demand a reduction of the unit price for shortfall quantities.⁵²

Nothing more is required for the adjustment for excess quantities. According to the BGH, it suffices that the quantity performed exceeds the estimate by more than 10% and that one side requests the new price. Whether the costs contained in the old unit price have actually changed because of the excess quantity is not a condition of the claim. In the case decided, it was the employer that demanded a lower price for façade insulation. The appeal court should not have refused the claim on the ground that cost advantages for the contractor had not been established.⁵³ Conversely, without a request the contract price remains. If the contractor invoices deviating quantities at the agreed unit prices and the employer does not request an adjustment either, the contractor’s action is conclusively pleaded according to the LG Hagen.⁵⁴

A worked example. The tender provides for 2,000 m³ of soil replacement at €24.00/m³. Each cubic metre contains €3.00 of allocation for site set-up, site overheads and general overheads, so €6,000 calculated in total. If, without any instruction, 2,380 m³ are required, the contract price applies up to 2,200 m³. For the remaining 180 m³, either side can request a new price. If, on the other hand, only 1,700 m³ are replaced (85%), only €5,100 of the allocation has been recovered through the unit price. The contractor can demand that the unit price for all 1,700 m³ be increased so that the missing €900 is covered, arithmetically by around €0.53/m³. With performance of 92%, by contrast, it could not have claimed anything. Whether, beyond the overheads, the share for risk and profit must also be compensated is disputed.⁵⁵ The OLG Brandenburg and the LG Nürnberg-Fürth in any event compensate the calculated profit. The OLG treats the general risk as part of the profit, the LG leaves it out because it does not grow with the smaller quantity.⁵⁶

To prevent advantages from being counted twice, no. 3 contains a proviso: the increase does not apply insofar as the contractor already receives compensation through excess quantities in other items or in some other way. According to Bolz, excess quantities in other items count only with the part above 110% and only if a new price has not already been agreed for them. Compensation in some other way may in particular come from the variations on the same construction project.⁵⁷ The rarely cited no. 4 adds that if work paid for at a lump sum depends on a unit-price item, a reasonable change of the lump sum may also be claimed together with the change in the unit price, but only on request.⁵⁸

Compensation in some other way must, however, actually occur. In the case before the OLG Brandenburg, a company was to remove deadwood from over 1,200 roadside trees. Because other firms had got there first, 138 trees were left. The employer offered it work on two further roads not covered by the contract as a substitute, and the contractor declined. That did not cost it its claim. Compensation offered is not compensation received, and only remuneration claims from the same contract are to be credited, for example under sec. 2(5), (6) or (8) VOB/B. Claims from another contract do not count, even if it follows on directly in place and time.⁵⁹

Two distinctions need to be observed. If an item falls away entirely because the employer misjudged the quantity (zero item, Nullposition), the contractor can, according to the case law of the BGH, claim remuneration by way of supplementary interpretation of the contract in accordance with the principles of sec. 2(3) no. 3 VOB/B, unless the item falls away because the employer has terminated, waived it or ordered something else. The contractor must submit the compensation calculation itself.⁶⁰ According to the OLG Brandenburg, the calculated share for overheads and profit then takes the place of a unit price, and does so in full.⁶¹ If, on the other hand, the employer waives a separable part of the work, for example one of two identical bicycle shelters in the same item, this is not a shortfall but a partial termination. The contractor then retains the agreed price but must give credit for saved expenses and other earnings (sec. 8(1) no. 2 VOB/B), and no compensation calculation takes place. Under sec. 8(6) VOB/B, partial termination must be in writing.⁶²

The same method of invoicing applies where the parties agree by consent that part of the work will no longer be performed. In the BGH case, the employer, because the construction measure had been accelerated, required a steel safety barrier around 14.8 km long to be dismantled after only 333 instead of 588 days of provision. This was not a shortfall, because sec. 2(3) VOB/B presupposes a pure change in the estimated quantities without interference with the scope of work. If the parties have not otherwise regulated the consequences of such a consensual termination of the contract, remuneration is governed by sec. 8(1) no. 2 VOB/B.⁶³ The LG Nürnberg-Fürth has applied this to individual items that by agreement were not performed. The contractor received the site overheads, general overheads and profit calculated in them, which it could not save.⁶⁴

2. Quantities in the lump-sum contract: sec. 2(7) VOB/B

The lump sum protects only against deviations that arise without the employer’s involvement. Everything the employer orders must be paid for separately in a lump-sum contract too, because sec. 2(7) no. 2 VOB/B expressly declares subsections (4), (5) and (6) applicable. This also applies to minor changes.⁶⁵

For pure quantity deviations, the lump sum stands until the limit of what can reasonably be expected is reached. Only when the deviation is so large that the lump sum can no longer reasonably be expected of the party affected can that party demand compensation, which takes account of both additional and reduced costs. For this standard, sec. 2(7) no. 1 sentence 2 VOB/B expressly refers to sec. 313 BGB. The BGH rejects a “rigid risk limit of 20% of the total remuneration” (our translation). If, however, the quantity deviation has the effect that the overall financial result of the contract “not only eats up the contractor’s expected profit but also leads to losses” (our translation), holding on to the lump sum will often no longer be reasonable. All circumstances are relevant, including whether misleading information from the employer contributed to the miscalculation.⁶⁶ As a rule of thumb for closer examination, Langen/Berger cite a change in the total remuneration of around 20% or a change in individual items of 100% or more.⁶⁷ This is guidance from the commentary, not a threshold set by case law.

A typical case is a mutual mistake about a quantity. Both parties base the lump sum for the dismantling of a steel structure on around 40 tonnes, but in fact it is over 95 tonnes because the as-built drawings did not show a concealed second load-bearing level. Here holding on to the lump sum may become unreasonable. The compensation does not, however, put the contractor in the position it would have been in had the quantity been correct. Bolz understands it as a mitigation of the loss, and the court may estimate the amount (sec. 287 ZPO).⁶⁸ The request should be made as promptly as possible. According to Bolz, it is sufficient in any event if it is raised with the final invoice.⁶⁹

3. New drawings, new instructions: the order under sec. 2(5) VOB/B

If the employer orders a change, the claim to the new price does not depend on the parties signing a variation agreement.⁷⁰ The provision that the price agreement “should be made before execution” (sec. 2(5) sentence 2 VOB/B) is a non-mandatory procedural rule (Ordnungsvorschrift). Langen/Berger summarise the requirements of the claim in three elements: the Bauist departs from the Bausoll, the employer ordered this, and the cause of the order lies within the employer’s sphere of risk, “nothing more” (our translation).⁷¹

An order is a unilateral declaration of the employer, or of a representative authorised by it, that takes effect on receipt. No form is prescribed, and it may also be given by conduct. Revised construction drawings are an order, as Langen/Berger add, “incidentally even a written order” (our translation). Whether the employer intended to change the contract is irrelevant. It suffices that it requires a particular execution, even if it mistakenly believes that this is already included in the price.⁷²

A communication that merely describes the existing situation is not an order. If the employer reports a hindrance and its consequences, this is, according to the BGH, not an order within the meaning of sec. 2(5) VOB/B, because such a communication is not aimed at changing the contractual obligations. The same applies to construction schedules with which the employer merely reacts to disruptions caused by hindrances. The BGH has expressly abandoned divergent earlier case law.⁷³ Compensation for standstill and hindrance in these cases is to be sought under sec. 6(6) VOB/B and sec. 642 BGB, not under sec. 2 VOB/B.⁷⁴ Nor, according to the OLG Düsseldorf, are general expectations voiced by the employer, for example that use would be made of night working opportunities, as yet a binding, unilateral change to the contract.⁷⁵

The OLG Celle has derived a rule of thumb from the BGH’s line — in translation: “The less influence the employer has on the changed construction circumstances, the less an intention will be discernible to order the changes as a new subject of the contractual performance.” In the case, the road construction authority had informed the contractor by telephone that one construction section was to be split and that the remaining sections could only be carried out in the following year. The reason was a traffic management order that had not been granted as applied for and which the contractor was responsible for obtaining. The contractual completion periods remained unchanged, and the description of the works had expressly not made the contractor’s construction schedule part of the contract. Nor did the fact that the employer knew the calculation turn the postponement into an order. The Regional Court had still awarded around €356,000 for it, wrongly, as the OLG decided.⁷⁶

Older decisions that saw such a communication as an order should therefore be used with caution. In 2020, the OLG Brandenburg treated an employer’s communication that the traffic management order would not be granted and the work could only start in the following year as an order for change under sec. 1(3) and sec. 2(5) VOB/B. It measured the additional remuneration by revenue lost through the postponement. In its disclosed calculation, the contractor had applied €8 per tonne of milled asphalt as a price-reducing item, based on an offtake agreement with an asphalt mixing plant that ran only from August to November 2015. The court awarded €178,730.90.⁷⁷ Whether the classification as an order still holds in the light of the more recent BGH case law is doubtful. What remains valid is the difference in responsibility: in the Brandenburg case it was for the employer to obtain the traffic management order, in the Celle case for the contractor. Who is responsible for the cause of the postponement at least decides whether compensation under sec. 6(6) VOB/B or sec. 642 BGB comes into consideration.

The position is different where the parties, for example following a notice of concerns, agree by consent on a different execution without discussing the price. Langen/Berger then derive the remuneration from sec. 2(5) VOB/B. Bolz would close the gap by supplementary interpretation of the contract and, in the alternative, through the customary remuneration (sec. 632(2) BGB).⁷⁸

In substance, the right to give instructions under sec. 1(3) VOB/B covers the construction design, that is, what is built. The employer may interfere with the construction circumstances only exceptionally, where this is technically imperative. Langen/Berger give the example of the access road provided for in the contract that is closed by the municipality: the contractor must then follow the instruction to use another road.⁷⁹ Whether the employer may also unilaterally change the construction time, that is, accelerate or postpone it, the BGH has left open.⁸⁰ For the statutory right to give instructions, the OLG Celle has held that changes which concern not the construction content but only the construction circumstances, and in particular the construction time, are not covered by sec. 650b(1) sentence 1 BGB.⁸¹ Langen/Berger conclude for the VOB/B contract that the contractor may refuse an ordered acceleration and freely negotiate its remuneration.⁸² Anyone who receives an instruction in this area should therefore expressly agree the remuneration before execution. Under sec. 1(4) sentence 2 VOB/B, the employer can only assign work that is not required for the execution with the contractor’s consent. What is then negotiated is a new contract, not a variation.

And what if the employer orders something it was not entitled to order? The contractor may then refuse to carry it out. If, as is usual on construction sites, it carries it out nevertheless, it receives remuneration under sec. 2(5) VOB/B according to both major commentaries. Langen/Berger treat the instruction as an “other order” (andere Anordnung) within the meaning of that provision, while Bolz sees it as an offer by the employer for changed work (geänderte Leistung), which the contractor accepts by performing it.⁸³

A change usually costs time as well. According to Bolz, the additional costs of an extended construction period, for example longer provision of site set-up, personnel and equipment, are to be claimed under sec. 2(5) VOB/B and not as damages under sec. 6(6) VOB/B or compensation under sec. 642 BGB.⁸⁴ The BGH has confirmed that “additional remuneration under sec. 2(5) VOB/B can also result from indirect time-related effects such as equipment standstill” (our translation) that go back to orders under sec. 1(3) VOB/B.⁸⁵ This also applies to items that themselves remain physically unchanged but whose production becomes more laborious as a result of the order.⁸⁶ There is dispute about the proof. Langen/Berger take the view that an extension of the construction period occurring after the order is presumed, in the contractor’s favour, to be a consequence of the change.⁸⁷ Bolz, by contrast, requires proof of the causal link and as a rule a presentation related to the actual construction sequence.⁸⁸ Anyone who cannot prove the time-related consequences through the documented construction sequence should not rely on the presumption.

What the contractor spends merely to calculate or substantiate its variation is not part of the additional costs. The BGH case concerned the costs of a private expert report. They are recoverable neither under sec. 2(5) VOB/B nor under sec. 2(9) VOB/B, as long as the employer has not requested the documents. A claim for reimbursement on another legal basis is not thereby excluded.⁸⁹ If the employer, who bears the design responsibility, requests design documents from the contractor for the changed work, these must be paid for separately according to Bolz.⁹⁰

4. Changed or additional? Sec. 2(5) or (6) VOB/B

The most consequential boundary of sec. 2 VOB/B runs within the category of orders. Changed work (sec. 2(5), geänderte Leistung) means work that is provided for in the contract but is to be carried out differently on the basis of an order. Whether the change is technically necessary or merely follows the employer’s wish makes no difference.⁹¹ Additional work (sec. 2(6), zusätzliche Leistung) means work that is not provided for in the contract and that the employer requires.

Different tests are offered for drawing the line in individual cases. Langen/Berger ask whether the new work can still be developed technically and in terms of pricing from an existing item. If so, there is a change under subsection (5), otherwise additional work under subsection (6).⁹² Bolz looks at whether the work is technically necessary to produce a functional work and is missing from the contract.⁹³ Three examples:

• For the same walls, the employer requires concrete strength class C30/37 instead of the tendered C25/30. Formwork, reinforcement and placing remain the same, only the concrete becomes more expensive. The new work can be developed from the existing item: subsection (5).
• The removal of a suspended mineral fibre ceiling has been tendered. In fact, the ceiling is glued directly to the structural slab and has to be chiselled off and disposed of as construction rubble. This is a different production method, and the work is technically necessary for the removal: subsection (6) under both approaches.
• The tender provides for 26 EI 30 fire doors, and the employer has nine more installed in a newly partitioned corridor. The item does not change, it simply occurs more often. Langen/Berger assign such an ordered excess quantity to subsection (6).⁹⁴ Bolz distinguishes: if the ordered excess quantity is based on technical necessity, subsection (6) applies, otherwise subsection (5).⁹⁵ Since the new corridor is based on the employer’s wish, Bolz’s approach would lead to subsection (5). The only certainty is that sec. 2(3) VOB/B does not fit, because there is an order.

Case law works with a similar formula. According to the OLG Hamm, under subsection (6) the contractual work remains unchanged and work not provided for in the contract is added. If, by contrast, the contractor performs a continuing contractual obligation differently on the basis of an order, this is a change under subsection (5). Work that takes the place of work provided for can therefore at most fall under subsection (5). In the case, the open trench on the last section replaced the microtunnelling.⁹⁶ The OLG Düsseldorf assigned to subsection (5) the order to protect the same track sections as before, but in a different way, against hazards from railway operations, and therefore did not require prior notice of the additional costs.⁹⁷ According to the BGH, work not provided for in the contract also includes work that is necessary to produce the work owed but is not covered by the remuneration agreement. The employer can require it unilaterally under sec. 1(4) sentence 1 VOB/B, and in return it must be specially remunerated under subsection (6).⁹⁸

Langen/Berger consider the distinction superfluous, especially as the statutory construction contract law in sec. 650b BGB now knows only a single concept of change.⁹⁹ One hard difference remains, however: only under subsection (6) is notice before the start of execution a condition of the claim (Part IV). Since nobody can reliably predict how a court will later classify the work, Langen/Berger recommend always giving written notice of the claim for additional remuneration before execution, without distinguishing between changes and additional work.¹⁰⁰ We share this recommendation without reservation. In the case before the OLG Naumburg (Part VII), the contractor had based its claim on subsection (6), and the court applied subsection (5).

5. The employer takes over or omits work: sec. 2(4) VOB/B

The employer can also interfere with the remuneration by taking work away. If it takes over work itself that is contractually the contractor’s responsibility, classically the supply of building materials, sec. 2(4) VOB/B applies the rule on termination for convenience accordingly: the contractor receives the agreed remuneration less what it saves or earns elsewhere or maliciously fails to earn (sec. 8(1) no. 2 VOB/B). If the parties agree by consent to omit part of the work without regulating the remuneration, this, according to the BGH, is not a case of sec. 2(4) VOB/B. The consequences must then be determined by interpretation.¹⁰¹

How invoicing under sec. 8(1) no. 2 VOB/B works was summarised by the OLG Brandenburg for a unit-price contract terminated for convenience. The contract prices are decisive, so favourable and unfavourable items are not set off against each other. General overheads and all operating costs that would have been incurred even without the terminated contract are not saved and can at most be covered by other earnings. If the contractor bases the saved material costs on a supplier’s specific quotation, the employer’s objection that this figure is not in line with the market does not help it. The only option left to the employer is to prove that it is a sham quotation. The contractor must give credit for other earnings only if the employer alleges them.¹⁰²

For defects caused by material supplied by the employer, a distinction applies. According to Bolz, the employer who takes over the supply bears only the risk of the general suitability of the material. Production defects in individual parts remain the contractor’s responsibility, unless it has fulfilled its duty to examine and give notice under sec. 4(3) VOB/B and is released under sec. 13(3) VOB/B.¹⁰³

6. The contractor acts without an order: sec. 2(8) VOB/B

The principle is strict: work performed without an order or in unauthorised departure from the order is not remunerated and must even be removed on request (sec. 2(8) no. 1 VOB/B). There are ways out, which differ markedly in their requirements. Langen/Berger count four:¹⁰⁴

• The employer subsequently acknowledges the work (no. 2 sentence 1).
• The work was necessary for performance of the contract, the employer would presumably have wanted it, and the contractor notified it without culpable delay (no. 2 sentence 2). All three elements must be present together, and the contractor must prove them. The notification is in principle a condition of the claim.¹⁰⁵
• The provisions on agency without authority (Geschäftsführung ohne Auftrag) remain unaffected (no. 3, secs. 677 et seq. BGB). According to the prevailing view, the employer’s interest and presumed intention suffice here, and no notification is required. Bolz disagrees: if VOB/B has been agreed as a whole, no. 2 sentence 2 takes precedence as a special rule.¹⁰⁶
• An unjust enrichment claim, which however only compensates the objective value, is according to Langen/Berger only possible if sec. 2(8) VOB/B is invalid in the specific contract.¹⁰⁷

This invalidity is not a theoretical case: if the employer imposed VOB/B and did not agree it as a whole, sec. 2(8) nos. 1 and 2 VOB/B does not, according to the case law of the BGH, withstand an isolated review of content.¹⁰⁸ Insofar as remuneration is due, it is calculated according to the rules for changed or additional work (no. 2 sentence 3).

According to the BGH, consent to the work is sufficient for subsequent acknowledgement. In the drywall case, the contractor had made 4,725 wall penetrations that the employer had not requested. When it was asked on the employer’s behalf to submit a variation offer (Nachtragsangebot) for them, this amounted to acknowledgement. The fact that the employer did not agree with the price demanded did not change this.¹⁰⁹

The practical lesson nevertheless remains: if the parties are in dispute over whether work is owed, carrying it out will as a rule not correspond to the employer’s presumed intention. The contractor must first clarify the situation. Items that the employer has deleted from a variation offer are not to be carried out.¹¹⁰

7. Price shock from outside: sec. 313 BGB

After the start of the war in Ukraine, prices for steel, bitumen and other building materials rose sharply. For contracts with fixed prices, the question arose whether the contractor could demand an adjustment. The starting point is strict: the contractor bears the procurement risk for building materials, in the words of Langen/Berger “in terms of both time and cost” (our translation).¹¹¹ Anyone who agrees a fixed price thereby assumes the risk of rising costs. Even unforeseeable and significant increases therefore as a rule do not justify an adjustment of the contract. According to Bolz, case law allows an adjustment only exceptionally in the event of extreme cost jumps that the contractor could not have avoided through its own precautions either.¹¹²

Langen/Berger argue for a more generous solution. They distinguish the “small” basis of the transaction of the individual contract from the “large” one, that is, the expectation that the political and economic framework will not be fundamentally shaken by war, hyperinflation or the like. Because the war affected not one contract but almost the entire industry, they consider an adjustment justified as soon as the war-related additional costs exceed one and a half times the calculated profit, and would as a rule split the additional costs equally.¹¹³ This is a proposal from the commentary, not settled case law.

The public sector reacted with decrees in 2022. As Langen/Berger describe it, a decree of the Federal Ministry for Housing, Urban Development and Building of 25.03.2022 treated proven war-related delivery delays as a case of force majeure with a corresponding extension of the completion periods (sec. 6(2) no. 1 lit. c VOB/B). Above the threshold of reasonableness, it considered a price adjustment under sec. 313 BGB possible and alternatively allowed the subsequent agreement of a material price escalation clause. These decrees were directly binding only on public employers. Langen/Berger nevertheless attribute to them a “guiding effect” (Orientierungswirkung) also for private contracts concluded before the start of the war.¹¹⁴

The practical conclusion: there is no right to a price adjustment merely because prices have risen. Anyone asserting such a right must prove specific, crisis-related additional costs that can no longer be borne within the framework of the specific contract. The contractual solution is better: material price escalation clauses in new contracts, short tender validity periods and, for long projects, possibly invoicing on a cost-reimbursement basis. In existing contracts, time and money are pursued separately, the extension of the completion period through force majeure (sec. 6(2) no. 1 lit. c VOB/B), the additional costs through sec. 313 BGB, both with complete documentation of purchasing.

Classification at a glance

• The quantity of an existing item turns out differently without an order: subsection (3) in the unit-price contract, subsection (7) no. 1 in the lump-sum contract. No notice required.¹¹⁵
• Work provided for in the contract is to be carried out differently on the basis of an order: subsection (5). No notice required, but strongly recommended.
• Work not provided for in the contract is required: subsection (6). Notice before the start is a condition of the claim.
• The employer orders more of an existing item: subsection (6) according to Langen/Berger, according to Bolz subsection (5) or (6) depending on technical necessity. Give notice.
• The employer takes over work itself or deletes separable parts: subsection (4) or partial termination, invoicing under sec. 8(1) no. 2 VOB/B.
• The contractor performs without an order: subsection (8), remuneration only exceptionally.
• The parties change the execution by consent without discussing the price: gap-filling by interpretation, the details are disputed.
• External events make the work more expensive: at most sec. 313 BGB.

IV. Securing the variation: give notice, make an offer, reach agreement

A claim that has arisen can be lost through a single omission. In practice, this is the phase in which most money is lost.

Prior notice for additional work

If work not provided for in the contract is required, the contractor must give notice of its claim to special remuneration before it begins execution (sec. 2(6) no. 1 sentence 2 VOB/B). According to the case law of the BGH, notice is in principle a condition of the claim. It serves to protect the employer and is therefore unnecessary where it cannot provide that protection — in translation: “Notice is unnecessary, among other cases, where the employer, when requiring the work, assumed or had to assume that it would be paid for.”¹¹⁶ The contractor cannot then fall back on sec. 2(8) VOB/B, because the work was performed at the employer’s request and not without an order.¹¹⁷

The notice is meant to protect the employer from unexpected costs. It should learn that its request costs money while it can still make other arrangements, choose a cheaper execution or obtain other offers. The requirements are low. No form is prescribed, though written form is advisable for evidential reasons. The notice need not state an amount, a clear message that the work is to be paid for additionally suffices. It must be received before that very work begins.¹¹⁸ The addressee is the employer. Whether notice to the supervising architect, who has not been given authority to receive it, is sufficient is disputed.¹¹⁹ Anyone who wants to be on the safe side gives notice to the employer itself.

In detail, three groups of cases can be distinguished: where the employer had to assume in any event that the work would be paid for, for example because the contractor had pointed out a gap in the description of the works under sec. 4(3) VOB/B and the employer then required execution, where there was no alternative to immediate execution, or where the contractor is not at fault for the omission.¹²⁰ The contractor bears the burden of pleading and proof for each of these exceptions, and their outcome is hard to predict. Langen/Berger take the view that the exceptions riddle the provision “like Swiss cheese” (our translation) and consider the notice requirement invalid where VOB/B has not been agreed as a whole.¹²¹ According to the case law of the BGH, by contrast, it withstands an isolated review of content if it is interpreted so narrowly that the claim lapses only where the employer has an interest worthy of protection and the omission is unexcused.¹²² Contracts that extend the notice requirement by standard terms to changed work under subsection (5) are of doubtful validity. We are not aware of any decision on this. It is safer to act as if they were valid.

The variation offer

The variation offer (Nachtragsangebot) is at the same time notice and the basis for subsequent invoicing. It should identify the changed or additional work, derive the additional and reduced costs comprehensibly and expressly address the consequences for the construction period. Without a verifiable variation offer, there will as a rule be no meaningful negotiation about the amount either.¹²³ Anyone who later wants to use the 80% interim payment under sec. 650c(3) BGB (Part VI) must be particularly careful. According to the OLG Celle, a variation offer within the meaning of sec. 650b(1) sentence 2 BGB exists only if the employer can at least approximately estimate the additional costs it faces from it, and it must be available before the order.¹²⁴

Accepting the order under reservation

The employer often orders the variation, but at its own, lower price. If the contractor signs without reservation, that price is agreed and can no longer be called into question by either side later.¹²⁵ If, on the other hand, it accepts the order but expressly keeps the price open, it precisely does not agree to the employer’s price (sec. 150(2) BGB). No binding price then comes into existence. The case in Part VII shows how much such a sentence can be worth.

What the variation agreement should cover

For signed variation agreements, Langen/Berger formulate the maxim — in translation: “No variation to the variation!” If the contractor has forgotten time-related additional costs in the agreement, it cannot claim them subsequently because it is bound by the agreement.¹²⁶ Anyone who cannot yet quantify the consequences for the construction period must therefore expressly reserve them. If the employer is a consumer and the variation agreement is concluded off business premises, for example on the site of a detached house, the employer may have a right of withdrawal.¹²⁷

Conversely, a signed variation does not automatically create a payment obligation for work that was already owed. The OLG Naumburg, in a detailed lump-sum contract, distinguished between the agreed and the new content of the work. If part of the work already ordered is ordered again in the variation, no double payment obligation arises, and only what goes beyond the previous Bausoll is remunerated. The position is different only if the employer has declared itself willing to pay irrespective of the existing obligation to perform, for example by acknowledgement or settlement. In the case, €20,053.20 remained of the variation for a reinforced road build-up.¹²⁸ The variation should therefore state clearly which work is new.

Hourly work and design services

Under sec. 2(10) VOB/B, hourly work (Stundenlohnarbeiten) is only remunerated if it was expressly agreed as such before it began. Bolz considers an agreement possible even during the work or afterwards, while Langen/Berger emphasise the time before the start.¹²⁹ In practice, the question is easy to answer: agree before the first hour. No form is prescribed, but the agreement must be made with the employer or an authorised representative. A site manager or construction supervisor without special authority cannot in principle conclude an hourly-rate agreement, and countersigning an hourly time sheet concerns only the nature and extent of the work, not the agreement itself.¹³⁰ If there is no agreement on the rate, the customary local remuneration applies (sec. 15(1) no. 2 VOB/B). Invoicing is governed by sec. 15(3) VOB/B: the employer must return certified hourly time sheets without delay and at the latest within six working days of receipt. Sheets not returned in time are deemed accepted. If the employer considers the effort uneconomical, it must plead and prove this.¹³¹

Conversely, the employer must pay separately for design documents such as drawings or calculations if it requests them although the contractor does not owe them under the contract and commercial custom (sec. 2(9) no. 1 VOB/B). No notice is required for this.¹³²

Documentation

Indirect costs and consequences for the construction period are proved through the construction sequence, not by assertion. Site diary, photographs, meeting minutes and correspondence about hindrances and changed drawings are items of evidence in this phase. A site diary of which copies are sent to the employer on an ongoing basis can at the same time serve as written notice.¹³³

V. Invoicing: how the new price is formed

Only now do the figures come in. For decades, German construction law followed pre-calculatory price continuation (vorkalkulatorische Preisfortschreibung): the new price was developed from the original tender calculation, if necessary from a comparable item in another part of the bill of quantities. Good and bad prices alike were thus preserved as the basis.¹³⁴ Anyone who had been too cheap in the tender carried that loss forward into all variations.¹³⁵

First the contract, then agreement, then the gap

Before a method is chosen, an order of steps must be followed. First: does the contract, beyond the mere incorporation of VOB/B, regulate how variation prices are to be formed? Second: have the parties agreed on the specific variation or on its method of calculation, including tacitly through their invoicing practice? Third: only if both are lacking is there a gap to be filled by supplementary interpretation of the contract.¹³⁶ Agreements on individual price components, for example an agreed general contractor's mark-up on subcontractor work, also apply to variations.

Whether a pre-formulated clause under which variations are to be carried forward exclusively from the original tender calculation is valid is disputed. Langen/Berger consider such a provision possible even in standard terms and conditions.¹³⁷ Bolz considers such a clause incompatible with the guiding principle of sec. 650c BGB and therefore unreasonable, irrespective of which side imposed it.¹³⁸

The BGH's line: costs actually required

For excess quantities under sec. 2(3) no. 2 VOB/B, the BGH has filled the gap. If there is no agreement between the parties, including on individual price components, the new price is to be formed by way of supplementary interpretation of the contract, and the decisive factor is then the costs actually required for the excess quantity plus reasonable mark-ups.¹³⁹ A few months later it went further: a reference to one's own calculation is not sufficient to substantiate the amount of the mark-ups, but the court may estimate them (sec. 287(2) ZPO).¹⁴⁰

For changed and additional work, the Kammergericht had already taken the same path earlier. Its first headnote reads — in translation: “The basis of the claim for additional remuneration under sec. 2(5) and (6) VOB/B is the actual additional or reduced costs incurred by the contractor as a result of the change in performance.” The court captured this in the formula M = N − A: the additional costs result from the difference between the costs of the new and those of the old execution. As a mark-up, based on the statutory presumption of 5% on termination for convenience (sec. 649 sentence 3 BGB old version, now sec. 648 sentence 3 BGB), it applied at least the factor 20/19, that is, around 5.3%.¹⁴¹ Bolz considers such a flat-rate minimum mark-up mistaken, because the reasonable mark-ups depend on the company and its field of activity.¹⁴²

Whether the standard of actual costs applies to all grounds for adjustment has not been conclusively settled. For additional work under subsection (6), the OLG Brandenburg held the costs actually required to be decisive, though these may well coincide with the calculated ones.¹⁴³ The OLG Schleswig left open for subsection (5) whether the BGH's case law on excess quantities can be transferred, and showed that supplementary interpretation of the contract can also lead back to the calculation: where the parties “have agreed prices for a large number of different items of work, there is a sufficient probability that they would have been guided by these price agreements” (our translation). The calculated costs then remain at least an aid.¹⁴⁴

The procedural advantage of the new line is considerable. Anyone who sets out the actual costs of the change need not disclose and defend the entire calculation. If the contractor uses a subcontractor, its additional costs are as a rule the remuneration it must pay the subcontractor for the change at market rates.

The Kammergericht clarified in 2025 what the contractor must plead for this purpose. In principle, it must break down its additional expenditure at least by type of cost, that is, by material, equipment and labour. This can only be dispensed with if the derivation can also be followed without it, above all in the case of a manageable, well-described part of the work. The calculation of the original price has only the significance of an aid. If it does not accurately reflect the actual costs, or if this is disputed, the actual costs count. The price level of the contract is not lost as a result, because it is carried forward through the mark-up factor derived from the agreed remuneration (below, calculation rules). According to the Kammergericht, this is exactly what the formula “a good price stays a good price, a bad price stays a bad price” (our translation) means, which, contrary to widespread understanding, is not an argument against invoicing on the basis of actual costs.¹⁴⁵

The deposited original tender calculation: sec. 650c(2) BGB

In the statutory construction contract law, the calculation remains in play. If the contractor has deposited its original tender calculation as agreed, it may calculate the variation on that basis under sec. 650c(2) BGB, and it is presumed that the remuneration thus carried forward corresponds to the remuneration based on the costs actually required. The Kammergericht interprets this presumption narrowly: only the correctness of the figures in the deposited calculation is presumed, not the end result of the price continuation.¹⁴⁶ Whether the provision also applies in a VOB/B contract is disputed. The Kammergericht applies it,¹⁴⁷ and Langen/Berger consider this almost compelling.¹⁴⁸ Bolz rejects any recourse to the calculation within the framework of sec. 2 VOB/B, even to a deposited one, because there must be no combination of actual and calculated costs in a variation calculation.¹⁴⁹

Shortfall quantities

For shortfall quantities, the BGH has not yet decided on the method. In the clearing case, it expressly left open how the adjustment is to be made in detail and merely held that factors outside the original price calculation are disregarded.¹⁵⁰ Langen/Berger nevertheless infer from the decision that the new price is to be formed on the basis of the original tender calculation, and consider recourse to actual costs pointless for shortfall quantities.¹⁵¹ In practice there is no way around the calculation anyway: to calculate the compensation, the contractor must disclose which shares for site set-up, site overheads and general overheads are contained in its unit prices.¹⁵²

The LG Nürnberg-Fürth has expressly decided against transferring the BGH case law on excess quantities to shortfall quantities. The compensation, it held, is to be determined by carrying forward the prices of the bill of quantities on a calculatory basis, because the agreed profit cannot be read from the actual costs. The calculation was as follows: 6.0% site overheads, 10.5% general overheads and 1.0% each for risk and profit had been calculated, so the unit price stood at 118.5% of the direct costs. For the shortfall quantity, the mark-up share contained in it, excluding risk (17.5 percentage points), was extracted and multiplied by the difference between the tendered and the performed quantity. Excess quantities above 10% in other items entered the compensation calculation as over-recovery with the share excluding risk and profit (16.5 percentage points).¹⁵³ Part of the OLG Brandenburg's tree-cutting case (Part III.1), by contrast, can no longer be upheld. There, revenue from the utilisation of the cuttings that had not been included in the unit price was also compensated. According to the BGH's later clearing judgment, such factors are disregarded.¹⁵⁴

Calculation rules

• Timing: According to Langen/Berger, the decisive costs are those at the start of execution of the changed work.¹⁵⁵
• Site overheads, if they can be separately evidenced, count as part of the costs themselves and not of the mark-up. The BGH itself has clarified that the divergent wording in its judgment of 08.08.2019 was due to an editorial oversight.¹⁵⁶
• Mark-ups for general overheads and for risk and profit are to be assessed reasonably, according to Bolz on a company-specific basis. The Kammergericht primarily looks at the mark-up factor contained in the agreed price. If the court has to determine it itself, factors between 1.05 or 1.0526 and 1.2 can in any event be regarded as reasonable.¹⁵⁷
• Estimation: If there is no reliable basis for an exact calculation, the court may estimate costs and mark-ups (sec. 287(2) ZPO), provided that the contractor presents tangible indications for this.¹⁵⁸
• Reduced costs: Estimation works in both directions. The OLG Düsseldorf deducted from the estimated variation price a likewise estimated saving of €16,559.40, because no fixed protection had to be erected over 660 m. It rejected the objection that no significant personnel costs had been saved, because with protective equipment, as with scaffolding, the quantity of material and the duration of its use also determine the price.¹⁵⁹

If the variations swell considerably overall, the question arises whether the contractor remains bound by old, bad prices. Langen/Berger consider a guideline indispensable and speak of a “red alert” (Alarmsignal Rot) when the variations exceed 30% of the original contract sum, adding that 25% could also be defended as the limit.¹⁶⁰ The BGH has not recognised such a limit. It held that an appeal court's assumption that the binding effect of the old price ends in any event “if the change amounts to more than 30 per cent of the contract remuneration” (our translation) was not sufficiently reasoned, and referred to the requirements of sec. 313 BGB in the individual case.¹⁶¹

VI. Dispute: liquidity before judgment

One can answer every question of classification and calculation correctly and still lose if the answer only comes after years. The construction contract law of 2018 gave contractors tools with which liquidity can be secured during the dispute. Whether they also apply in a VOB/B contract has not been conclusively decided, but the case law of the Higher Regional Courts increasingly affirms it.¹⁶²

Interim payment of 80%. In the case of a disputed variation, the contractor may demand 80% of the additional remuneration stated in its variation offer as an interim payment (Abschlagszahlung) under sec. 650c(3) BGB. If the later final account shows that this was too much, the excess must be repaid with interest. According to the OLG München and the OLG Celle, this also presupposes in a VOB/B contract that the requirements of sec. 650b BGB are met, in particular a sufficient variation offer before the order.¹⁶³ According to the Kammergericht, the 80% rule does not give rise to a presumption as to the amount of the variation that binds the court, neither in the main proceedings nor in interim relief proceedings.¹⁶⁴

Interim injunction. Under sec. 650d BGB, in disputes about the right to give instructions and the adjustment of remuneration after construction has started, the ground for an injunction (Verfügungsgrund, in essence urgency) need not be shown to obtain an interim injunction (einstweilige Verfügung). This makes it possible to clarify provisionally whether there was an order, which helps precisely where the employer insists that the work is included in the price. The employer can also take this route, for example to have it established that a variation is unfounded.¹⁶⁵ According to the Kammergericht, an application for a positive declaration is equally admissible, for example that a piece of work is already covered by the bill of quantities, or precisely not.¹⁶⁶

How far this relief extends is disputed among the Higher Regional Courts. The OLG Celle does not apply the presumption of the ground for an injunction to disputes under sec. 1(3), (4) and sec. 2(5), (6) VOB/B, whereas the Kammergericht does.¹⁶⁷ According to the OLG Karlsruhe, disputes about pure changes in quantity fall under neither sec. 650b nor sec. 650c BGB in any event, so that sec. 650d BGB does not apply to them either.¹⁶⁸ According to the Kammergericht, the presumption does not lapse once the final invoice is ready to be issued (Schlussrechnungsreife) either, whereas according to the OLG Karlsruhe the scope of sec. 650d BGB is then no longer open.¹⁶⁹ Anyone who waits too long with the application in any event refutes the urgency themselves.¹⁷⁰

Security. The builder's security (Bauhandwerkersicherung) under sec. 650f(1) BGB expressly also covers remuneration from additional orders. According to Langen/Berger, the contractor can demand security for the variation remuneration even before execution.¹⁷¹

Suspension and refusal to perform. If a payment due is not made despite a reasonable additional period, the contractor may suspend the work (sec. 16(5) no. 4 VOB/B). A mere dispute over the amount of a variation does not entitle it to do so, because under sec. 18(5) VOB/B disputes do not entitle the contractor to suspend the work. Bolz puts it this way: the principle that “performance of the contract takes precedence over price certainty” (our translation) applies. The position is different if the employer definitively refuses payment for an ordered change, or disputes the change and refuses any negotiation.¹⁷² Langen/Berger go further and grant a right to refuse performance as soon as the employer refuses without reason to fix a properly substantiated variation price before execution, though they themselves advise caution.¹⁷³ In any event, it is risky to threaten to suspend work in order to force a signature on a variation. This may constitute an unlawful threat, and an unjustified refusal to perform may entitle the employer to terminate for good cause.¹⁷⁴

VII. A project in fast motion: the OLG Naumburg case

The case that the OLG Naumburg concluded at the end of 2025 runs through all phases of this article, and it shows how long the answer can take.¹⁷⁵

Tender and contract. In November 2013, a specialist company was awarded the contract for clearing explosive ordnance from a lot of around 102 hectares on a military training area. VOB/B 2012 had been agreed, the bill of quantities worked with unit prices, and the tender for the lot was around €1.04 million gross. The area was to be uncovered by hand.

Execution. On around 369,000 m², a good third of the area, the ground was so compacted that it could not be dug by hand. A hydraulic excavator with armoured glazing became necessary. The employer ordered the work to continue under these conditions. The court classified this as a change under sec. 2(5) VOB/B and not as additional work under subsection (6), because the existing basic items were affected and no new work was added. The parties agreed a new extra-over item for it.

Variation. The contractor demanded €0.91/m². The employer placed the variation order in March 2015 but entered a price of €0.28/m² on the form and paid only that. The contractor accepted the order but reserved the right to fix the price later. The court saw the employer's change of price as a rejection of the variation offer combined with a new offer (sec. 150(2) BGB), and the contractor's reservation as a refusal to agree to that price. A binding price of €0.28/m² never came into existence. The fact that invoicing had in the meantime been at the employer's price did no harm, because an interim invoice is only a provisional account.

Invoicing. The court did not calculate according to the actual additional costs but carried forward the tender calculation, because the parties had agreed on this method, at least in the proceedings. It took the personnel costs from the comparable extra-over items for difficult recovery of ordnance. Result: €0.78/m² and, for the extra-over item, a further payment of €220,352.26 gross. Behind this lies a general idea: if, in a longer project, the contractor has always calculated its variations from the original tender calculation and the employer has accepted this by checking and paying, then according to Bolz a common understanding about the method is to be assumed, and the new price is then carried forward from the calculation.¹⁷⁶

Duration. The action had been filed in August 2015. After the judgment of the LG Magdeburg in 2018, the OLG Naumburg initially dismissed the claim for the extra-over item in 2019. In December 2022, the BGH set aside that judgment to that extent and remitted the case, because an expert opinion should have been obtained.¹⁷⁷ After the report of an expert in construction pricing, the final judgment was handed down at the end of 2025. Ten years for one unit price are the strongest argument for the tools from Part VI. They are to be used in the first year of the dispute, not the tenth.

Frequently asked questions

When does a quantity deviation lead to a new unit price?
If the deviation is up to 10 %, the contract price continues to apply (sec. 2(3) no. 1 VOB/B). For a quantity above 110 %, a new price is to be agreed on request (no. 2). Either party may request it, including the employer. For a quantity below 90 %, the unit price for the entire quantity actually performed is to be increased at the contractor's request (no. 3).

What is the difference between changed and additional work?
Changed work (sec. 2(5) VOB/B) is work provided for in the contract that is to be performed differently on the employer's order. Additional work (sec. 2(6) VOB/B) is work not provided for in the contract that the employer demands. Only under subsection 6 is notice before the start of the work a condition of the claim.

Do I have to give notice of a claim for extra pay before starting the work?
For additional work, yes: the contractor must give notice of the claim to special remuneration before starting performance (sec. 2(6) no. 1 sentence 2 VOB/B). No form is prescribed, written form is advisable for evidence. Since nobody can predict with certainty how a court will classify the work, notice of a claim for extra pay should always be given in writing before performance, for changes and additional work alike.

The employer orders the variation at its own, lower price. What now?
If the contractor signs without reservation, that price is agreed and can no longer be challenged by either party. If, however, the contractor accepts the order and expressly leaves the price open, it does not agree to the employer's price (sec. 150(2) BGB). No binding price then comes into existence.

How is the new price calculated?
First according to the contract, then according to an agreement between the parties, only then by supplementary interpretation. For an increased quantity under sec. 2(3) no. 2 VOB/B, the BGH then applies the actually necessary costs plus reasonable mark-ups (BGH, judgment of 08.08.2019 – VII ZR 34/18). For changed and additional work, the Kammergericht had already taken the same route (KG, judgment of 10.07.2018 – 21 U 30/17).

May I stop work while the variation is in dispute?
A mere dispute about the amount of a variation does not entitle the contractor to do so, because under sec. 18(5) VOB/B disputes do not entitle the contractor to stop work. If a payment that is due remains unpaid despite a reasonable grace period, the contractor may suspend the work (sec. 16(5) no. 4 VOB/B). Threatening to stop work in order to force a signature on a variation is risky in any event.

Footnotes

1. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 1. ↩
2. On the types of invoicing and contract, Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 43 to 46. ↩
3. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 66 („Da ihn nur die Vergütungsmethodik vom Einheitspreisvertrag unterscheidet“), likewise Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 42. ↩
4. In favour of a renaissance, Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 46. Reserved as to its practical significance, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 46. ↩
5. OLG Brandenburg, judgment of 18.02.2021 – 12 U 114/19, NZBau 2021, 534 Rn. 20 f., following BGH NJW 1981, 1442. On sec. 2(7) VOB/B, there Rn. 30. Not to be confused with OLG Naumburg, judgment of 16.12.2019 – 12 U 114/19 (Parts II and IV). ↩
6. BGH, judgment of 10.06.2021 – VII ZR 157/20, NJW 2021, 3393 = NZBau 2021, 725 = BauR 2022, 102 (headnote) Rn. 28 to 33. ↩
7. BGH, judgment of 07.03.2013 – VII ZR 68/10, BGHZ 196, 299 = NJW 2013, 1950 = NZBau 2013, 366 (headnotes a to c) Rn. 21 and 25 to 27. ↩
8. BGH, judgment of 14.03.2013 – VII ZR 116/12, BGHZ 196, 355 = NJW 2013, 1953 = NZBau 2013, 369 (headnotes c and d). ↩
9. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 54. ↩
10. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 54 at the end. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 188. ↩
11. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 71. ↩
12. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 184 f., there on the case law of the BGH since the so-called university library decision (Universitätsbibliothek) of 25.06.1987. ↩
13. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 186. ↩
14. BGH, judgment of 13.03.2008 – VII ZR 194/06, BGHZ 176, 23 = NJW 2008, 2106 = NZBau 2008, 437 (headnote e). On this, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 185 at the end. ↩
15. On the terms, Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 38 and 63. ↩
16. KG, judgment of 13.02.2026 – 21 U 13/26, NZBau 2026, 464 (headnotes 1 and 2), handed down in proceedings under sec. 650d BGB (Part VI). ↩
17. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 39. ↩
18. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 39 (example on the review of standard terms under secs. 305 et seq. BGB). ↩
19. OLG München, judgment of 15.01.1987 – 29 U 4348/86, NJW-RR 1987, 661 (action brought by an association, still decided under the former Standard Business Terms Act, AGB-Gesetz, whose standards continue to apply today in secs. 305 et seq. BGB). ↩
20. Terms following Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 38, the example of a conversion carried out „unter Betrieb“ (while operations continue) there at Rdn. 63. ↩
21. BGH, judgment of 20.06.2013 – VII ZR 103/12, NZBau 2013, 565 = NJW-RR 2014, 23 Rn. 22 f. ↩
22. OLG Naumburg, judgment of 16.12.2019 – 12 U 114/19, NZBau 2020, 504 Rn. 51 (detailed lump-sum contract). ↩
23. OLG Naumburg, judgment of 16.12.2019 – 12 U 114/19, NZBau 2020, 504 Rn. 43 to 45 (scope of a completeness clause that made the report part of the contract). ↩
24. OLG Hamm, judgment of 08.07.2025 – 21 U 2/23, NZBau 2026, 454 Rn. 35 and 39 (microtunnelling for a gas pipeline). ↩
25. OLG Hamm, judgment of 08.07.2025 – 21 U 2/23, NZBau 2026, 454 (headnote 1) Rn. 27 to 29. ↩
26. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 64. ↩
27. BGH, judgment of 13.03.2008 – VII ZR 194/06, BGHZ 176, 23 = NJW 2008, 2106 = NZBau 2008, 437 (headnote c). ↩
28. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 66 to 68. ↩
29. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 68 („Für den jeweiligen Teil gelten die jeweiligen Regeln.“). ↩
30. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 66 f. ↩
31. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 203. ↩
32. LG Hagen, judgment of 06.09.2023 – 21 O 75/20, NJW-RR 2024, 19. ↩
33. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 70. Cf. BGH, judgment of 05.12.2002 – VII ZR 342/01, NJW 2003, 743 = NZBau 2003, 149 (the wording of the description of the works carries comparatively great weight as against drawings, at least where it describes the work precisely in detail). ↩
34. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 72. ↩
35. OLG Düsseldorf, judgment of 27.03.2025 – 5 U 148/23, NJW-RR 2025, 1046 = NZBau 2025, 496 (headnote 1). ↩
36. BGH, judgment of 08.11.2007 – VII ZR 183/05, BGHZ 174, 110 = NJW 2008, 511 = NZBau 2008, 109. ↩
37. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 40. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 9. ↩
38. BGH, judgment of 14.11.2017 – VII ZR 65/14, BGHZ 217, 13 = NJW 2018, 391 = NZBau 2018, 207 (headnotes 2a and 2b) Rn. 25 to 28, still on VOB/B 2006. ↩
39. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 106. ↩
40. Cf. the examples in Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 107 (five beech trees in the external works, roller shutters on 30 of 50 windows). How the ordered excess quantity is to be classified is disputed (Part III.4). ↩
41. BGH, judgment of 30.06.2011 – VII ZR 13/10, BGHZ 190, 212 = NJW 2011, 3287 = NZBau 2011, 553 (headnote b). ↩
42. BGH, judgment of 24.07.2003 – VII ZR 79/02, NJW-RR 2004, 92 = NZBau 2004, 31 = BauR 2003, 1892 (reasons under III. 2 b, there a discount of 5% „auf alle Einheitspreise“). ↩
43. KG, judgment of 11.02.2025 – 21 U 89/23, NJW 2025, 2776 (headnote 1). ↩
44. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 102 (unit-price contract) and Rdn. 220 f. (lump-sum contract). ↩
45. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 117 and Rdn. 29, likewise Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 55 at the end. ↩
46. BGH, order of 04.11.2015 – VII ZR 282/14, NJW-RR 2016, 29 = NZBau 2016, 96 Rn. 24 f. (precautionary indication in proceedings on a complaint against refusal of leave to appeal). ↩
47. LG Nürnberg-Fürth, judgment of 18.12.2023 – 12 O 8630/20, NJW-RR 2024, 634 Rn. 41. ↩
48. BGH, judgment of 01.08.2013 – VII ZR 6/13, BGHZ 198, 141 = NJW 2013, 3167 (no claims for defects). BGH, judgment of 10.04.2014 – VII ZR 241/13, BGHZ 201, 1 = NJW 2014, 1805 (no compensation of value). BGH, judgment of 11.06.2015 – VII ZR 216/14, BGHZ 206, 69 = NJW 2015, 2406 (no restitution, sec. 817 sentence 2 BGB). BGH, judgment of 16.03.2017 – VII ZR 197/16, BGHZ 214, 228 = NJW 2017, 1808 Rn. 17 and 24 (subsequent and partial agreement). ↩
49. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 4. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 47. ↩
50. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 105. ↩
51. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 52. ↩
52. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 107. ↩
53. BGH, judgment of 21.11.2019 – VII ZR 10/19, NJW 2020, 468 = NZBau 2020, 84 (headnote) Rn. 13 to 17. ↩
54. LG Hagen, judgment of 06.09.2023 – 21 O 75/20, NJW-RR 2024, 19 (headnote 3). ↩
55. In favour of compensating risk and profit as well, the prevailing view, cf. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 55. Critical, as hardly compatible with the wording, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 108. ↩
56. OLG Brandenburg, judgment of 16.10.2019 – 4 U 80/18, NZBau 2020, 158 Rn. 28 to 31. LG Nürnberg-Fürth, judgment of 18.12.2023 – 12 O 8630/20, NJW-RR 2024, 634 Rn. 44. ↩
57. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 111. Likewise, also on the inclusion of variations, Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 56. ↩
58. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 113. ↩
59. OLG Brandenburg, judgment of 16.10.2019 – 4 U 80/18, NZBau 2020, 158 (headnote 1) Rn. 19 to 22. ↩
60. BGH, judgment of 26.01.2012 – VII ZR 19/11, BGHZ 192, 252 = NJW 2012, 1348 = NZBau 2012, 226 Rn. 14, 20 to 22 and 24. ↩
61. OLG Brandenburg, judgment of 16.10.2019 – 4 U 80/18, NZBau 2020, 158 (headnote 3) Rn. 42 and 45, following BGH, judgment of 26.01.2012 – VII ZR 19/11, BGHZ 192, 252. ↩
62. On the distinction, BGH, judgment of 26.04.2018 – VII ZR 82/17, NJW 2018, 2564 = NZBau 2018, 461 (headnotes a and b) Rn. 18 to 20. On the ordered removal of items as partial termination and on the written form, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 106 and 128. The example is based on Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 55 (two of four concrete slabs of equal size). ↩
63. BGH, judgment of 26.04.2018 – VII ZR 82/17, NJW 2018, 2564 = NZBau 2018, 461 (headnotes a and b), still on VOB/B 2002. ↩
64. LG Nürnberg-Fürth, judgment of 18.12.2023 – 12 O 8630/20, NJW-RR 2024, 634 (headnote 2) Rn. 50 to 53 (the court assumed as true that the items were removed by agreement, Rn. 51). ↩
65. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 220. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 105. ↩
66. BGH, judgment of 30.06.2011 – VII ZR 13/10, BGHZ 190, 212 = NJW 2011, 3287 = NZBau 2011, 553 (headnote c) Rn. 30. ↩
67. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 109. ↩
68. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 217. ↩
69. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 219. ↩
70. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 134. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 87. ↩
71. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 87. ↩
72. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 85. ↩
73. BGH, judgment of 19.09.2024 – VII ZR 10/24, BGHZ 241, 306 = NJW 2024, 3716 = NZBau 2025, 176 Rn. 16, 21 f. and 27. Following it, OLG Celle, judgment of 14.01.2026 – 14 U 58/25, NJW 2026, 2110. ↩
74. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 139 at the end. ↩
75. OLG Düsseldorf, judgment of 27.03.2025 – 5 U 148/23, NJW-RR 2025, 1046 = NZBau 2025, 496. ↩
76. OLG Celle, judgment of 14.01.2026 – 14 U 58/25, NJW 2026, 2110 Rn. 47 and 51 to 60, the quotation at Rn. 57, following BGH, judgment of 19.09.2024 – VII ZR 10/24, BGHZ 241, 306. ↩
77. OLG Brandenburg, judgment of 25.06.2020 – 12 U 59/19, NZBau 2021, 106 (headnotes 1 and 2) Rn. 24 and 26 to 33. ↩
78. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 85. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 138. ↩
79. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 75. ↩
80. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 139. ↩
81. OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 = NZBau 2026, 102 Rn. 76 (headnote 3). ↩
82. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 77. ↩
83. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 77. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 140. ↩
84. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 135. ↩
85. BGH, order of 23.03.2022 – VII ZR 191/21, NJW 2022, 2332 = NZBau 2022, 521 (headnote a). ↩
86. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 90 (indirect effects of the order on parts of the work that remain physically unchanged). ↩
87. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 90. ↩
88. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 98 (on excess quantities) and Rdn. 141. ↩
89. BGH, judgment of 22.10.2020 – VII ZR 10/17, NZBau 2021, 24 (headnote a) Rn. 14, 16 f. and 19 to 23. On this, Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 92 and Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 150. ↩
90. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 151 f. ↩
91. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 137. ↩
92. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 80. ↩
93. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 167. ↩
94. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 81 (example: enlargement of a car park by 100 m²). ↩
95. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 136. ↩
96. OLG Hamm, judgment of 08.07.2025 – 21 U 2/23, NZBau 2026, 454 Rn. 32 f. ↩
97. OLG Düsseldorf, judgment of 27.03.2025 – 5 U 148/23, NJW-RR 2025, 1046 = NZBau 2025, 496 (reasons on the protection of lots 10 and 15). ↩
98. BGH, judgment of 07.03.2013 – VII ZR 68/10, BGHZ 196, 299 = NJW 2013, 1950 = NZBau 2013, 366 Rn. 11, still on VOB/B in the former numbering (sec. 1 no. 4, sec. 2 no. 6). ↩
99. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 74 (heading: „Die VOB/B unterscheidet (überflüssigerweise) noch zwischen geänderten Leistungen und zusätzlichen Leistungen“) and Rdn. 82. ↩
100. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 84. ↩
101. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 127, also on invoicing under sec. 8(1) no. 2 VOB/B. ↩
102. OLG Brandenburg, judgment of 20.10.2022 – 12 U 37/21, NZBau 2023, 166 (headnotes 1 to 4), still on sec. 649 BGB old version. ↩
103. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 131. ↩
104. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 103. ↩
105. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 250 and 258. ↩
106. On the prevailing view, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 254 f., on the opposing view, same author, Rdn. 256 f. ↩
107. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 103. ↩
108. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 259. ↩
109. BGH, judgment of 07.03.2013 – VII ZR 68/10, BGHZ 196, 299 = NJW 2013, 1950 = NZBau 2013, 366 Rn. 10 to 14. Same decision on sec. 138 BGB in Part I and on the 30% limit in Part V. ↩
110. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 248 f. ↩
111. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 110. ↩
112. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 28, there with references on cost increases by a factor of 15 and by 60% relative to the total remuneration respectively. ↩
113. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 110 (with a worked example). ↩
114. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 110, there also on the guiding effect for private construction contracts. ↩
115. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 103. ↩
116. BGH, order of 23.03.2022 – VII ZR 191/21, NJW 2022, 2332 = NZBau 2022, 521 Rn. 23, following BGH, judgment of 23.05.1996 – VII ZR 245/94, BGHZ 133, 44 = NJW 1996, 2158 = BauR 1996, 542. ↩
117. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 171. ↩
118. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 172 and 177 to 180. ↩
119. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 181, who considers only the employer to be the correct addressee, without prejudice to the principles of apparent authority and authority by acquiescence (Anscheins- und Duldungsvollmacht). ↩
120. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 172 to 176, following BGH, judgment of 23.05.1996 – VII ZR 245/94, BGHZ 133, 44. ↩
121. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 82 f. ↩
122. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 193. ↩
123. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 160. ↩
124. OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 = NZBau 2026, 102 (headnote 2). ↩
125. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 100. ↩
126. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 58. ↩
127. OLG Karlsruhe, order of 14.04.2023 – 8 U 17/23, NJW 2024, 156 = NZBau 2024, 27 (headnotes 1 and 2: variation agreements on additional work are legally independent contracts for work, withdrawal under secs. 312b, 312g BGB). ↩
128. OLG Naumburg, judgment of 16.12.2019 – 12 U 114/19, NZBau 2020, 504 (headnotes 1 and 2) Rn. 21 to 25 and 36. On the ground, same decision in Part II. ↩
129. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 274. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 45. ↩
130. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 271. On the signature of a site manager without authority on hourly time sheets, OLG Brandenburg, order of 12.05.2026 – 10 U 84/25, IBRRS 2026, 1591. ↩
131. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 277, there also on the contractor's secondary burden of pleading. ↩
132. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 265. ↩
133. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 84. ↩
134. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 95. ↩
135. Thus still OLG Hamm, judgment of 09.05.2018 – I-12 U 88/17, NJW-RR 2019, 14 Rn. 51 to 54 (a calculated loss is carried forward in absolute terms). The decision predates BGH, judgment of 08.08.2019 – VII ZR 34/18, and was criticised by the KG, judgment of 10.07.2018 – 21 U 30/17, BauR 2018, 1738. ↩
136. BGH, judgment of 08.08.2019 – VII ZR 34/18, BGHZ 223, 45 Rn. 17 and 20 f. (there an agreed general contractor's mark-up of 20%) and Rn. 27. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 50 f. On agreement through invoicing practice, Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 84. ↩
137. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 54. ↩
138. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 118. ↩
139. BGH, judgment of 08.08.2019 – VII ZR 34/18, BGHZ 223, 45 = NJW 2020, 337 = NZBau 2019, 706 (headnote d) Rn. 17, 20 f. and 27 to 29. ↩
140. BGH, judgment of 21.11.2019 – VII ZR 10/19, NJW 2020, 468 = NZBau 2020, 84 Rn. 24. Likewise already BGH, judgment of 08.08.2019 – VII ZR 34/18, BGHZ 223, 45 Rn. 19. ↩
141. KG, judgment of 10.07.2018 – 21 U 30/17, BauR 2018, 1738 = ZfBR 2018, 670 (headnotes 1 and 7). The complaint against refusal of leave to appeal was dismissed (BGH, order of 24.04.2019 – VII ZR 164/18). ↩
142. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 101. ↩
143. OLG Brandenburg, judgment of 22.04.2020 – 11 U 153/18, NZBau 2020, 639. ↩
144. OLG Schleswig, judgment of 17.12.2020 – 7 U 21/18, juris Rn. 68 and 71 (headnote 6). The complaint against refusal of leave to appeal was dismissed (BGH, order of 23.02.2022 – VII ZR 117/21). ↩
145. KG, judgment of 18.07.2025 – 21 U 176/24, NZBau 2026, 47 (headnotes 3 and 4 and the reasons on the mark-up factor, appeal on points of law admitted). ↩
146. KG, judgment of 02.03.2021 – 21 U 1098/20, NZBau 2021, 523 Rn. 64 f. (headnote 3). ↩
147. KG, judgment of 02.03.2021 – 21 U 1098/20, NZBau 2021, 523 Rn. 63. ↩
148. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 93. ↩
149. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 100. ↩
150. BGH, judgment of 10.06.2021 – VII ZR 157/20, NJW 2021, 3393 Rn. 28 („unabhängig davon, wie diese im Einzelnen erfolgt“). Likewise the case note by Kandel, NJW 2021, 3396. ↩
151. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 55. ↩
152. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 109. ↩
153. LG Nürnberg-Fürth, judgment of 18.12.2023 – 12 O 8630/20, NJW-RR 2024, 634 (headnote 1) Rn. 42 and 44 to 46, distinguishing BGH, judgment of 08.08.2019 – VII ZR 34/18. ↩
154. OLG Brandenburg, judgment of 16.10.2019 – 4 U 80/18, NZBau 2020, 158 Rn. 34 to 38 (€9.13 per tree). Contra BGH, judgment of 10.06.2021 – VII ZR 157/20, NJW 2021, 3393 Rn. 28. ↩
155. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 96. ↩
156. BGH, judgment of 21.11.2019 – VII ZR 10/19, NJW 2020, 468 = NZBau 2020, 84 Rn. 22 f. Likewise Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 97 and Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 91. ↩
157. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 101. KG, judgment of 18.07.2025 – 21 U 176/24, NZBau 2026, 47 (headnote 2, appeal on points of law admitted). ↩
158. BGH, judgment of 08.08.2019 – VII ZR 34/18, BGHZ 223, 45 Rn. 19, and of 21.11.2019 – VII ZR 10/19, NZBau 2020, 84 Rn. 24. OLG Düsseldorf, judgment of 27.03.2025 – 5 U 148/23, NJW-RR 2025, 1046 = NZBau 2025, 496 (estimate based on the additional costs incurred, a variation calculation could not be required). Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 101 and 217. ↩
159. OLG Düsseldorf, judgment of 27.03.2025 – 5 U 148/23, NJW-RR 2025, 1046 = NZBau 2025, 496 (estimated at 660 m at €25.09 including mark-up). ↩
160. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 98. ↩
161. BGH, judgment of 07.03.2013 – VII ZR 68/10, BGHZ 196, 299 = NJW 2013, 1950 Rn. 18. ↩
162. Affirming, OLG München, order of 12.03.2024 – 9 U 3791/23 Bau e, NJW 2024, 2117 = NZBau 2024, 753 (headnote 2), OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 = NZBau 2026, 102 (headnote 1), KG, judgment of 02.03.2021 – 21 U 1098/20, NZBau 2021, 523. Likewise Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 60 and 100 („im Vordringen befindliche obergerichtliche Rechtsprechung“). ↩
163. OLG München, order of 12.03.2024 – 9 U 3791/23 Bau e, NJW 2024, 2117 (headnote 2). OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 (headnotes 1 and 2). ↩
164. KG, judgment of 02.03.2021 – 21 U 1098/20, NZBau 2021, 523 Rn. 56 (headnote 4). ↩
165. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 60. ↩
166. KG, judgment of 13.02.2026 – 21 U 13/26, NZBau 2026, 464 (headnote 3). ↩
167. OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 Rn. 104. Contra KG, judgment of 13.02.2026 – 21 U 13/26, NZBau 2026, 464, which expressly refers to the divergent view of the OLG Celle. ↩
168. OLG Karlsruhe, order of 23.09.2022 – 8 W 29/22, NJW 2023, 372 Rn. 11. ↩
169. KG, judgment of 02.03.2021 – 21 U 1098/20, NZBau 2021, 523 (headnote 2). Contra OLG Karlsruhe, order of 23.09.2022 – 8 W 29/22, NJW 2023, 372 Rn. 14. ↩
170. OLG Celle, judgment of 14.05.2025 – 14 U 238/24, NJW 2026, 236 (headnote 4). Similarly OLG Karlsruhe, order of 23.09.2022 – 8 W 29/22, NJW 2023, 372 (headnote 3). ↩
171. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 100 at the end. ↩
172. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 159 and 162 f. ↩
173. Langen/Berger, Einführung in die VOB/B, 30. Aufl. 2025, Abschn. G Rdn. 100. ↩
174. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 164. ↩
175. OLG Naumburg, judgment of 23.12.2025 – 2 U 113/18, IBRRS 2026, 0777 (appeal on points of law not admitted). ↩
176. Bolz, in: Bolz/Jurgeleit, ibr-online-Kommentar VOB/B, Stand: 25.08.2025, § 2 Rdn. 84. ↩
177. BGH, order of 14.12.2022 – VII ZR 271/19 (judgment set aside and case remitted on the contractor's complaint against refusal of leave to appeal). At first instance, LG Magdeburg, judgment of 18.07.2018 – 10 O 1176/15. ↩

Legal position: October 2026. This article is for general information and does not replace legal advice in an individual case.

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