A. Less dangerous than expected
The VOB/B contains several paragraphs that require the written form. The notification of concern will serve as an example for this consideration:
§ 4 para. 3 VOB/B
If the contractor has concerns about the intended type of execution (…), he must notify the client of these concerns in writing without delay, if possible before the start of the work; (…)
If one of the formal requirements of VOB/B is disregarded, this will, "in case of doubt", that is, if nothing else arises from the contract or the circumstances of the contract, result in the invalidity of the declaration, § 125 BGB.
This may seem surprising at first, as the modern construction process, especially when several trades are working on the construction site at the same time, relies on fast and smooth communication. In times of cloud-based construction site management systems, a physical note that has to be passed from one party to another seems completely outdated.
Well, as it turns out, it's not that bad after all. The problem of excessive written form requirements was addressed by the legislator as early as 2001, and simplifications were created.
Section 127, paragraph 2, sentence 1 of the German Civil Code (BGB)
To fulfill the written form required by the legal transaction, insofar as no other will is to be assumed, the transmission by telecommunication (…)
Formal requirements for legal transactions are all those that the parties voluntarily stipulate in their contract. The counterpart to this are the statutory written form requirements, such as Section 368 sentence 1 or Section 766 sentence 1 BGB. At this point, one of the great truths of construction law must therefore be stated again: if the parties agree to its validity, the VOB/B – as general terms and conditions – becomes an integral part of the contract. It is therefore not a legal norm. It is also irrelevant whether or not a public client is involved.
The written form requirements of VOB/B are therefore legally binding in the sense of § 127 para. 2 p. 1 BGB. As such, they can be replaced by a simple text form. The text form (§ 126b BGB) is usually already fulfilled by a simple e-mail or SMS.
B. The dispute
This was and is the prevailing view of most commentators and legal scholars with regard to all written form requirements of VOB/B (for an overview, see: Preisser in: BeckOGK, as of January 1, 2022, BGB Section 635 Rn. 212). The Higher Regional Court of Cologne has also taken this view in the past (Higher Regional Court of Cologne, judgment of July 22, 2016 – I-16 U 145/15 = BauR 2017, 1218).
Meanwhile, other Higher Regional Courts have refrained from applying Section 127 (2) sentence 1 BGB, sometimes without giving a more detailed reason, including: OLG Frankfurt, decision of April 30, 2012, 4 U 269/11 = NJW 2012, 2206; Thuringian Higher Regional Court, judgment of November 26, 2015, 1 U 209/15, juris. This view, on the other hand, requires the use of a qualified electronic signature; a simple e-mail is not sufficient, the declarations were each invalid there.
Now, for the first time as far as can be seen, the Higher Regional Court of Koblenz has commented on the question of whether the written form requirements of VOB/B are met by simple e-mail. It answered the question in the affirmative, OLG Koblenz, judgment of October 8, 2020, 6 U 1945/19 = BauR 2021, 693. The Higher Regional Court bases its decision here, as a further consideration, on the fact that it has long been recognized that even an unambiguouscan release the building contractor from liability (Schleswig-Holstein Higher Regional Court, judgment of 18 July 2018, 12 U 8/18), but on closer inspection of the judgment, this is only an additional consideration that is put forward because the decision was to be made specifically with regard to § 4 (3) VOB/B. The fundamental position of the OLG is independent of this and can probably be applied to all written form requirements of VOB/B. Consequently, the aforementioned decision of the OLG Frankfurt is also quoted negatively.
C. More dangerous than expected
In view of this, however, a warning should be sounded, particularly for the Higher Regional Court districts of Koblenz and Cologne, regarding the consequences of this case law. The simple text form as a substitute for the contractual written form in the context of the notification of concerns pursuant to Section 4 (3) VOB/B is still more or less harmless for all parties involved and probably also in everyone's interest. Even in a crisis, the client has an interest in quickly learning of the (alleged) concerns of its contractors so that it can react in whatever way is necessary. However, the substitution of form from Section 127 (2) sentence 1 BGB develops unimagined explosive power in the context of another VOB/B clause:
§ 13 para. 5 no. 1 VOB/B
The contractor is obliged to remedy at his own expense all defects that arise during the limitation period and that are due to a service that is contrary to the contract, if the client requests this in writing before the expiry of the period. The claim for rectification of the notified defects shall become time-barred in 2 years, calculated from the receipt of the written request (…) [but not before the expiry of the general deadlines]
Here, too, the written form is replaced by the text form.
So the following situation may well arise:
Shortly after acceptance, the client (agreed: VOB/B) notices dark discolorations on the base plaster. He briefly reports this to his general contractor by text message. Nothing happens, both forget the matter. Shortly before the regular warranty period expires, the plaster falls off the wall at the same point. The owner immediately writes a letter to the building contractor complaining about the defect. The contractor does not respond, and then the regular warranty period expires. It turns out later that the plaster damage is due to a faulty seal from the outset.
In this case, the client cannot benefit from the "additional period" of § 13 para. 5 no. 1 VOB/B. He has already complained about the defect "in writing" – actually "in text form", 127 para. 2 sentence 1 BGB – by SMS shortly after acceptance! Only the first notification of defects triggers the "additional period" of § 13 para. 5 no. 1 sentence 2 VOB/B (already: BGH, judgment of November 25, 1976 - II ZR 209/75 -, marginal no. 10, juris). Furthermore, it is sufficient for the notification of defects if the client describes a symptom of the defect that has come to his attention (for more details, see here). In doing so, he may inadvertently trigger the deadline of § 13 para. 5 no. 1 VOB/B. His second notification of defects later has no influence on the limitation period.
D. Practical tips
For this reason, among others, and because the case law of the higher courts regarding Section 127 (2) sentence 1 BGB is also inconsistent, in practice it is always advisable to send important declarations by registered mail. The written form has a warning and documentation function, which may still be useful for some clauses of the VOB/B. Furthermore, only in this way can the receipt of a declaration be proven in court with certainty to the day in case of doubt. If time is of the essence, the declaration can also be scanned and sent in advance by email. You can ask for a short confirmation of receipt. However, it is essential to send it by registered mail afterwards, because the contractual partner is of course not obliged to provide such an acknowledgement of receipt. Until the matter is clarified by the Federal Court of Justice as to whether an e-mail satisfies the written form requirement within the meaning of VOB/B, there is also the risk of a different opinion being held by the Higher Regional Court.
To ensure that your project or your company does not get into trouble in the first place, please contact us in confidence. We will be happy to advise you even during the construction phase.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.