Change in technical standard

Change in technical standard between issue of order and acceptance

In its latest judgement, the Federal High Court of Justice (BGH) has clarified the obligations of the contractor in cases where the ‘generally accepted engineering standards’ change between the time when the order is issued and the time when the work is accepted. 

Background

The ‘generally accepted engineering standards’ are the technical standard with the lowest level of dynamism. An engineering standard is not deemed to be generally accepted until it has asserted itself in science as (theoretically) correct, found its way into the world of practical application and proved its worth there. This technical standard is relevant in the area of general law governing contracts to produce a work and in building and architectural law. According to it, the contractor is obliged to complete a work in the quality agreed between the parties. If no particular quality has actually been agreed between the parties, the contractor will in all cases have to assume that the state of the art in generally accepted engineering standards applies in the completion of the work. If the work then deviates from those criteria, it is defective, and the client has the right to assert a warranty claim against the contractor. But what if the generally accepted engineering standards change between the issue of the order and the acceptance of the work? 

This question was one that recently occupied the BGH (judgement of 14 November 2017, file no. VII ZR 65/14). In the case to be decided, the question was whether the plaintiff, who had been engaged to erect three halls with monopitch roofs, had to design the halls to cope with a snow load of 80 kg/m² – in accordance with the agreement that had been made and the state of technology which had been applicable at the time the order was issued – , or to cope with a snow load of 139 kg//m², the relevant technical standard having changed in the mean time.  

The BGH adjudged that in such a case the contractor was under obligation to inform the client of the change and the consequences it involved for the execution of the construction work, unless these were known to the client or obvious in view of the external circumstances. The aim of this was to put the client in a position either to demand compliance with the new rules, with the consequence that a more elaborate procedure might become necessary to the rendering of the work, which would normally mean that the client had to bear higher work costs, or to abandon the idea of complying with the new rules, whereupon the parties would modify the contractual agreement in such a way that the execution of the construction work could remain behind the new technical standard. 

Practical tip

It is advisable to take this duty to inform seriously and draw the attention of the client in good time to changes in the relevant technical standards, in order to avoid consequences some of which can be far-reaching under liability law. Any deviation from these specifications always requires that the contractual basis be modified to the mutual satisfaction of both parties. In this context too, it may be worth while extending insurance cover and safeguarding one’s position by taking out so-called extended product liability insurance.

[February 15th, 2018]