In the course of the execution of many construction projects, additional cost claims are made, which often leads to legal and even legal disputes. As a result of the corona pandemic, supply bottlenecks and exorbitant price increases, the question of the justification of additional cost claims and the associated burden of allegation and proof has increasingly been brought to courts.
The decision of the Supreme Court of 21.12.2022, 6 Ob 136/22a, has received a great deal of attention in the literature.
It was based on a simple set of facts, namely a contractor’s demand for pandemic-related additional costs as a result of legally prescribed measures. This concerned in particular the wearing of protective masks, ongoing disinfection, standing times, additional accommodation costs due to conversion to single rooms, etc. The main focus here is on the burden of allegation and proof regarding the additional costs.
The basis for the claim for the claim of such additional costs lies in § 1168 para 1 last sentence ABGB (unless ÖNORM B2110 or contractually deviating from this has been agreed). Accordingly, the contractor is entitled to appropriate compensation if he has been “shortened by loss of time in the execution of the work” due to circumstances from the sphere of the customer.
Therefore, the obstructive circumstances must first be explained and the causally associated consequences in the form of loss of time and/or additional effort. This must always be put in relation to the execution without hindering circumstances. In most cases, therefore, the original calculation and the calculation assumption will have to be used. However, these are also essential for appropriate compensation. The original price basis is always relevant. To put it simply, a low-cost contract must also be inexpensive in terms of additional costs in the bandwidth and, in the case of a highly remunerated basic contract, the additional costs must also be correspondingly in the upper range. What was cheap remains cheap – what was expensive remains expensive. The ratio of the original calculation must be maintained.
Neither from the law nor from the current decision of the Supreme Court can it be deduced how detailed the concrete evidence is to be provided. In most cases, proof of the specific additional costs incurred will be required. This means that a general expert opinion on the construction industry is not sufficient.
I would like to use a current example from my practice. If an excavation pit was offered on the basis of a soil survey and it then turned out that a firmer soil that could no longer be loosened with a normal excavator shovel was found (which is also disputed in the specific case), the additional costs demanded would also have to be concretely proven here. This means that it is not possible to set an average value for a soil class on the basis of an expert opinion, but specifically the additional effort, for example by proving the time spent on a fang, etc. must be proven. If the contractor is unable to do so, proof of the additional costs has not been provided. It should be noted, however, that in the literature individual authors in certain cases (which are then concretely this would have to be explained by the case law, if it were to follow this view) consider a pure appropriateness test to be sufficient.
The required level of detail of the proof will probably have to be based on the previous case law on detail when reviewing a claim for remuneration for work. Ultimately, claims for additional costs are also modified remuneration claims.
In practice, this means that the more concrete the allegations of loss of time and/or additional effort, the more likely they are to be used and awarded by the court. In my opinion, if the additional expense cannot be proven concretely and precisely and the claimant is looking for (flat-rate) reasonable compensation, the claim would have to be dismissed. In its decision, the Supreme Court grants an abstract assertion with reference to average values, etc. in any case, a rejection without concrete, construction-site-related submissions regarding the loss of time and/or additional effort caused.
There is no doubt that this decision once again underlines the importance of detailed documentation of the construction process of the specific construction site. This applies all the more to the documentation of a disrupted construction process and its consequences in terms of time and additional effort. In any case, we therefore recommend that you immediately report additional costs in the event of malfunctions and have the (additional) services commissioned, as well as meticulously documenting the consequences.
For further information, please contact:
Konstantin Fischer, Lawyer
Zumtobel + Kronberger + Rechtsanwälte OG, Salzburg
Email: ta.walue@rehcsif
t: +43 662 624500
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