Prof. Dr. Andreas Saxinger The Building Expert in the German Law

1. Prof. Dr. Andreas Saxinger The Building Expert in the German Law

2. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Agenda • Regulations for Building Work in the German Law • Who can be a Building Expert in Germany? • Fields of Activity • Private Expert‘s Report for Building Owners • Arbitration Report in the Case of Arbitration Clauses • Building Expert‘s Report for a Court

3. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Regulations for Building Work in the German Law (1) • Contract for Work and Services§ 631 BGB – German Civil Codevery general contract (also for transport, repair, maintenance), not specific for construction of buildings • VOB (Vergabe- und Vertragsordnung für Bauleistungen) includes three parts: • Part A: General conditions for the public procurement of building work • Part B: General conditions for the execution of building work • Part C: General technical conditions for the execution of building work

4. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Regulations for Building Work in the German Law (2) • What is the VOB? • No Written Lawenacted by the Deutscher Vergabe- und Vertragsausschuss für Bauleistungen (DVA): private organisation since 1920 • No Common Lawtoo many modifications during the yearsFirst version: 1926Modifications in: 1952, 1973, 1979, 1988, 1990, 1992, 1996, 1998, 2000, 2002 and 2006 • General Terms and Conditionsregulated by§ 305 BGB

5. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Regulations for Building Work in the German Law (3) • Fields of Application of the VOB • Public Bodiesmust apply the VOB/A, VOB/B and VOB/C • Private Building Owners no duty to apply the VOB, but they can include the VOB in the contract voluntarilyseldom VOB/A for procurementoften VOB/B for the contract • Only applicable for Construction Contractsnot applicable for planning contracts, architect contracts, general contractor and design contracts, development contracts

6. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Regulations for Building Work in the German Law (4) • No Specific Regulations for Building Experts • § 404 ZPO – German Civil Procedure Code:general article for experts, not specific for building experts • Only applicable if a court appoints an expert to prepare a report • Not applicable for private organisations • The preferred experts for a court are the publicly appointed and sworn-in experts • From a publicly appointed and sworn-in expert experience an expertise can be expected • Only if there are no publicly appointed and sworn-in experts the court can appoint other experts

7. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Who can be a Building Expert in Germany? (1) • Everybody with Technical Experience and Expertise can be a Building Expert in Germany • Most building Experts are publicly appointed and sworn-in building experts • Which organisations have the right to publicly appoint a building expert? • Only public bodies (not private organisations):- IHK: Chambers of Industry and Commerce- HwK: Chambers of Craft Business- Chambers of Architects- Chambers of Engineers

8. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Who can be a Building Expert in Germany? (2) • General Rules for the Public Appointement of Building Expert by Institut für Sachverständigenwesen (IfS) in Germany – Institute for Experts • Goal: high qualitity of building experts in Germany • General rules for the examination:oral (always) and written (sometimes) examination by an examination board (at least two persons) • Profound knowledge in specific technical matters • General knowledge of the german legal system • Personal and economic independence for impartial reports • Duty to continuing professional development

9. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Fields of Activity • Three Main Fields of Activity • Private expert‘s reports for building owners in case of possible or probable building defects • Arbitration reports for the parties in case of an arbitration clause in construction contracts • Expert‘s reports for a court in case of a dispute between two parties

10. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Private Expert‘s Reports for Building Owners • Case: Building Defects are Possible or Probable • The building owner will be obliged by a construction contract to pay the total price to the construction company if he accepts the building work (§ 641 BGB) • The building owner will be obliged to accept the building work, if there are no or only negligible defects (§640 BGB) • The building owner will ask a building expert to check the building, if building defects are possible or probable • The building owner and the building expert enter into a private contract • The goal of the private contract is a building expert‘s report • The building expert‘s report is essential for the building owner to come to a decision what to do at the next step

11. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Arbitration Reports for the Parties of a Construction Contract • Case: Arbitration Clause in a Construction Contract • Many private construction contracts contain arbitration clauses • The goal of arbitration clauses is to avoid, that the parties have to go immediatly to a public court in case of a dispute • The parties have to appoint an expert on friedly termsIf the parties do not agree, a third person or organisation with complete neutrality has to appoint the expert • Courts of arbitration are private and have own rules:- quick and closed for the public - slightly more expensive, but only one instance

12. The Building Expert in the German Law Prof. Dr. Andreas Saxinger Expert‘s Reports for a Court • Case: Dispute between the two Parties of a Construction Contract • Usually in Germany the Landgericht (with three judges) as first instance has the jurisdiction over disputes of building contracts (value in dispute more than 5.000.- €) • Often the court members will not be able to judge, if a building defect really exists or not (no legal but technical problem) • The court appoints an expert to answer to the questions of the court (no private contract) • Often the expert‘s report is the basis for the court‘s final decision

13. Thank you for your Attention! • Prof. Dr. Andreas Saxinger • Hochschule für Wirtschaft und Umwelt Nürtingen-Geislingen • Parkstraße 4 • D-73312 Geislingen/Steige • phone: 0049/7331/22-584 /-543 • email: andreas.saxinger@hfwu.de