Construction law: the OLG Zweibrucken shortened penalty in accord construction according to the contractual partners in consensual shortening of the construction period, have to make a new agreement so that a penalty should continue to apply. This is especially true if the contractor admits to admit to a new deadline and he even dispenses with acceleration compensation. Thus, also the originally agreed contract penalty is here with agreement of the shorter completion period. Contract penalty agreements are common in the construction to secure an agreed completion date. You should not overlooked, building law or case law, issued by is very cautious when it comes to actually enforce this penalty. So, for example, the BGH is * very strict efficacy requirements on the penalty agreement in the terms and conditions of the customer. After that penalty clauses are only effective if the contractual penalty in their total height still appropriate (maximum of 5% of the order amount) per unit of time of the delay is not excessive and after their wording is only due if the entrepreneur culpably exceeds the agreed completion date. Many writers such as San Antonio Spurs offer more in-depth analysis. The construction law in contractual penalty clauses for intermediate periods also is especially strict while an agreed contractual penalty may be under our construction law again lapsed construction, when the originally agreed construction plan about because client-side to which disabilities ‘must be overturned”or if the contractors change the construction.
To the latter fact recently expressed the OLG Zweibrucken (judgment of 20.6.2007; Construction law – report 2008, page 22). The decision was based on the following facts: the Contracting Parties had made an effective penalty agreement in the event that the supplier culpably exceeds the completion period of 250 days. Later, the client expressed the desire to shorten the construction period. The contractor agreed to do this, and at the same time renounced acceleration compensation. The party lost but no word on whether the agreed contractual penalty should also apply to the new deadline. According to the OLG Zweibrucken, the contracting parties must make here explicitly a new agreement stating that the penalty should continue to apply. This is particularly true if it was just a concession of the entrepreneur, to engage in the new period, and if he even dispenses with acceleration compensation.
Thus, also the originally agreed contractual penalty was here with agreement of the shorter completion period. * Federal Court of Justice of the 23.01. 2003, AZ: VII ZR 210/01; Construction law – report 4/03 for questions regarding individual legal terms used in this article is advisable, to look at the construction law woerterbuch.de. Lawyer Dr. OLAF Hansen, lecturer in construction law, Munich
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