Section 630h Burden of proof in case of liability for malpractice and errors in providing information

(1) An error is to be presumed to have been committed by the treating party if a general treatment risk has materialised that was fully manageable for the treating party and that led to injury to the life, limb or health of the patient.

(2) The treating party is to prove that they obtained consent in accordance with section 630d and provided information in accordance with the requirements of section 630e. If the information does not comply with the requirements of section 630e, then the treating party may assert that the patient would have consented to the measure also if proper information had been provided.

(3) Where the treating party has not recorded a medically required major measure and its result in the medical records, contrary to what is stipulated in section 630f (1) or (2), or where, contrary to section 630f (3), they have not retained the medical records, it is to be presumed that they have not carried out this measure.

(4) If a treating party was not qualified to carry out the treatment they performed, it is presumed that the lack of qualification was the cause of the occurrence of the injury to life, limb or health.

(5) If gross malpractice has been committed, and if this is susceptible as a matter of principle to cause an injury to life, limb or health of the nature that in fact took place, it is to be presumed that the malpractice was the cause of this injury. This applies also if the treating party failed to gain, in good time, an understanding of a condition as medically required, or to record the findings obtained, insofar as there is a sufficient degree of probability that the finding would have led to a result which would have given rise to further measures, and if failure to take such measures would have constituted gross malpractice.

Title 9 Contract to produce a work and similar contracts

Subtitle 1 Contract to produce a work

Chapter 1 General provisions

Section 631 Contractual duties typical for a contract to produce a work

(1) By a contract to produce a work, a contractor is obliged to produce the promised work and the customer is obliged to pay the agreed remuneration.

(2) The subject matter of a contract to produce a work may be either the production or alteration of a thing or another result to be achieved by work or by a service.

Section 632 Remuneration

(1) Remuneration for work is deemed to be tacitly agreed if the production of the work, in the circumstances, is to be expected only in return for remuneration.

(2) If the amount of remuneration is not specified, then if a tariff exists, the tariff remuneration is deemed to be agreed; if no tariff exists, the usual remuneration is deemed to be agreed.

(3) In case of doubt, remuneration is not to be paid for a cost estimate.

Section 632a Part payments

(1) The contractor may demand a part payment from the customer in the amount of the value of the work they have performed and which they owe under the contract. Where the work has not been performed as contractually agreed, the customer may refuse to pay a reasonable portion of the part payment. The burden of proof as to the work corresponding to what has been contractually agreed continues to be incumbent on the contractor until acceptance. Section 641 (3) applies accordingly. The work is to be documented by a list that must facilitate a rapid and reliable evaluation of the work. Sentences 1 to 5 also apply to required materials or building components that are supplied or specially prepared and made available if, at the customer’s option, ownership of the materials or building components is transferred to them or an appropriate security is provided in this regard.

(2) The security under subsection (1) sentence 6 also may be provided by means of a guarantee or other payment undertaking by a financial institution or credit insurer authorised to operate its business in the territorial extent of this Code.

Section 633 Material defects and defects of title

(1) The contractor is to procure the work for the customer free of material defects and defects of title.

(2) The work is free of material defects if it is of the agreed nature. To the extent that the nature has not been agreed, the work is free from material defects

It is equivalent to a material defect if the contractor produces a work that is different from the work ordered or a quantity of the work that is too small.

(3) The work is free of defects of title if third parties, with regard to the work, either cannot assert any rights against the customer or can assert only such rights as are taken over under the contract.

Section 634 Rights of the customer in the case of defects

If the work is defective, the customer, if the prerequisites of the following provisions are met and to the extent not otherwise specified, may

Section 634a Limitation of claims for defects

(1) The claims designated in section 634 nos. 1, 2 and 4 become statute-barred

(2) In the cases governed by subsection (1) nos. 1 and 2, limitation begins on acceptance.

(3) In derogation from subsection (1) nos. 1 and 2, and subsection (2), claims become statute-barred after the standard limitation period if the contractor fraudulently concealed the defect. However, in the case governed by subsection (1) no. 2, claims do not become statute-barred before the end of the period specified therein.

(4) The right of rescission designated in section 634 is governed by section 218. Notwithstanding the ineffectiveness of rescission under section 218 (1), the customer may refuse to pay the remuneration to the extent that they would be entitled to do so by reason of the rescission. Where the customer exercises this right, the contractor may rescind the contract.

(5) Section 218 and subsection (4) sentence 2 apply accordingly to the right to abate the price designated in section 634.

Section 635 Cure

(1) If the customer demands cure, then the contractor may, at their option, remedy the defect or produce a new work.

(2) The contractor is to bear the expense necessary for cure, in particular transport, workmen’s travel, work and materials costs.

(3) The contractor may refuse cure, without prejudice to section 275 subsections (2) and (3), if it is possible only at disproportionate cost.

(4) If the contractor produces a new work, they may demand from the customer return of the defective work in accordance with sections 346 to 348.

Section 636 Special provisions on rescission and damages

In addition to the cases governed by sections 281 (2) and 323 (2), there also is no need for a period to be set if the contractor refuses cure under section 635 (3) or if cure has failed or cannot be reasonably expected of the customer.

Section 637 Self-help

(1) If there is a defect in the work, the customer may, after the expiry without result of a reasonable period specified by them for cure, remedy the defect themselves and demand reimbursement of the necessary expenses, unless the contractor rightly refuses cure.

(2) Section 323 (2) applies accordingly. There also is no need to specify a period of time if cure has failed or cannot reasonably be required of the customer.

(3) The customer may demand from the contractor advance payment of the expenses necessary to remedy the defect.

Section 638 Abatement of price

(1) Instead of rescinding the agreement, the customer may, by declaration to the contractor, abate the remuneration. The ground for exclusion under section 323 (5) sentence 2 does not apply.

(2) If the party of the customer or the contractor consists of more than one person, the abatement of price may be declared only by all them or to all of them.

(3) In abating the price, the payment is to be reduced in the ratio of the value that the defect-free work would have had to its actual value at the time the contract was concluded. If required, the abatement is to be identified by way of an estimate.

(4) If the customer has paid more than the abated remuneration, the amount overpaid is to be reimbursed by the contractor. Section 346 (1) and section 347 (1) apply accordingly.

Section 639 Exclusion of liability

The contractor may not rely on an agreement by which the rights of the customer with regard to a defect are excluded or restricted, insofar as the contractor fraudulently concealed the defect or gave a guarantee for the nature of the work.

Section 640 Acceptance

(1) The customer is obliged to accept the work that has been produced as contractually agreed, except to the extent that, in view of the nature of the work, acceptance is excluded. Acceptance may not be refused by reason of trivial defects.

(2) A work is considered accepted also if, following completion of the work, the contractor has set a reasonable period to the customer for its acceptance and the customer has not refused to accept the work within that period, citing at least one defect in the refusal. Where the customer is a consumer, the legal consequences of sentence 1 arise only if the contractor has made the customer aware, together with the demand for acceptance, of the consequences that failure to declare the refusal of acceptance, or failure to cite defects in refusing acceptance, will have; such notification must be in text form.

(3) If the customer accepts a defective work under subsection (1) sentence 1 even though they know of the defect, they only will be entitled to the rights designated in section 634 nos. 1 to 3 if they reserve their rights with regard to the defect in accepting the work.

Section 641 Due date of remuneration

(1) The remuneration is to be paid upon acceptance of the work. If the work is to be accepted in parts and the remuneration for the individual parts is specified, then the remuneration is to be paid for each part upon its acceptance.

(2) The remuneration of the contractor for a work the production of which the customer has promised to a third party is due at the latest

If the customer has given the third party security on account of possible defects of the work, sentence 1 applies only if the contractor gives the customer an appropriate security.

(3) If the customer may demand remedy of a defect, they may refuse to pay a reasonable portion of the remuneration after this has become due; as a rule, twice the costs necessary to remedy the defect are appropriate.

(4) If the remuneration is assessed in money, the customer is to pay interest on it from the acceptance of the work onwards, except to the extent that remuneration is deferred.

Section 641a (repealed)

Section 642 Cooperation by the customer

(1) If, in the production of the work, an act by the customer is necessary, then the contractor may demand reasonable compensation if the customer, by failing to perform the act, is in default of acceptance.

(2) The amount of compensation is assessed on the one hand on the basis of the duration of the default and the amount of the agreed remuneration, and on the other hand on the basis of the expenses the contractor saves or what the contractor is able to earn from other use of their labour.

Section 643 Termination for failure to collaborate

In the case governed by section 642, the contractor is entitled to give the customer a reasonable time limit for making up for the act to be performed by declaring that they will terminate the contract if the act is not undertaken by the end of the period of time. The contract is deemed to be cancelled if the act is not made up for by the end of the period of time.

Section 644 Allocation of risk

(1) The contractor bears the risk until acceptance of the work. If the customer is in default of acceptance, then the risk devolves to them. The contractor is not liable for any accidental destruction or chance deterioration of the materials supplied by the customer.

(2) If, on demand of the customer, the contractor ships the work to a place other than the place of performance, then the provisions of section 447 governing purchase apply accordingly.

Section 645 Responsibility of the customer

(1) If the work, before acceptance, is destroyed or deteriorates or becomes impracticable as the result of a defect in the materials supplied by the customer or as the result of an instruction given by the customer as to how the work is to be carried out, without a circumstance for which the contractor is responsible contributing to this, then the contractor may demand a portion of the remuneration that corresponds to the work performed and reimbursement of those expenditures not included in the remuneration. The same applies if the contract is cancelled under section 643.

(2) A more extensive liability of the customer for fault remains unaffected.

Section 646 Completion in lieu of acceptance

If acceptance is excluded due to the nature of the work, then, in the cases governed by sections 634a (2) and 641, 644 and 645, completion of the work takes the place of acceptance.

Section 647 Security right of the contractor

For their claims under the contract, the contractor has a security right over the movable things of the customer that they have produced or repaired if they have come into their possession during the production or for the purpose of repair.

Section 647a Mortgage of the owner of a shipyard

The owner of a shipyard, for their claims in relation to the building or repair of a ship, may demand to be granted a ship mortgage for the ship under construction or the ship of the customer. Where the work has not yet been completed, the owner of a shipyard may demand to be granted a ship mortgage for the portion of the remuneration corresponding to the work performed and for the expenditures not included in the remuneration. Section 647 does not apply.

Section 648 Right of termination of the customer

The customer may terminate the contract at any time up to completion of the work. If the customer terminates the contract, then the trader is entitled to demand the agreed remuneration; however, the trader must allow to be credited against them what they save due to the contract being cancelled or what they acquire or wilfully fail to acquire from other use of their labour. The presumption is that on that basis, the contractor is entitled to five per cent of the remuneration accounted for by the part of the work not yet provided.

Section 648a Termination for a compelling reason

(1) Both contractual parties may terminate the contract for a compelling reason without observing a period of notice. There is a compelling reason if, having considered all the circumstances of the specific case and having weighed the interests of both parties against each other, the terminating party cannot reasonably be required to continue the contractual relationship until the work is completed.

(2) A partial termination is possible; it must refer to a definable portion of the work owed.

(3) Section 314 (2) and (3) applies accordingly.

(4) Following the termination, each contractual party may demand of the other party that it cooperate in jointly determining the status of the work. Where one contractual party refuses to so cooperate, or where it fails to attend a meeting agreed for determining the status of the work, or a meeting scheduled by the other contractual party within a reasonable period, the burden of proof concerning the status of the work as per the date of the termination will be incumbent on that party. This does not apply if the contractual party fails to attend due to a circumstance for which it is not responsible and of which it has notified the other contractual party without undue delay.

(5) Where a contractual party terminates the contract for a compelling reason, the contractor is entitled to demand only whatever remuneration covers the portion of the work performed up until the termination.

(6) The termination does not rule out the entitlement to demand compensation of damages.

Section 649 Cost estimate

(1) If the contract is based on a cost estimate without the contractor guaranteeing the accuracy of the estimate and if it becomes apparent that the work cannot be carried out without substantially exceeding the estimate, then, if the customer terminates the contract for this reason, the contractor will be entitled only to the claim specified in section 645 (1).

(2) If such exceeding of the estimate is to be expected, then the contractor is to notify the customer without undue delay.

Section 650 Contract for work and materials; consumer contract on the production of digital products

(1) The provisions governing purchase are applicable to a contract dealing with the supply of movable things to be produced or manufactured. Section 442 (1) sentence 1 also applies to these contracts if the defect is caused by the material supplied by the customer. To the extent that the movable things to be produced or manufactured are not fungible things, sections 642, 643, 645, 648 and 649 apply, subject to the proviso that the relevant point in time under sections 446 and 447 takes the place of acceptance.

(2) Sections 633 to 639 on the rights in the case of defects as well as section 640 on acceptance are not to be applied to a consumer contract under which the trader enters into obligation

The provisions of Division 3 Title 2a Title 2a take the place of the provisions not to be applied in accordance with sentence 1. Sections 641, 644 and 645 are to be applied subject to the proviso that the supply of the digital product (section 327b (3) to (5)) takes the place of acceptance.

(3) In derogation from subsection (1) sentences 1 and 2, section 433 (1) sentence 2, sections 434 to 442, section 475 subsection (3) sentence 1, subsections (4) to (6) and sections 476 and 477 on the rights in the case of defects are not to be applied to a consumer contract under which the trader enters into obligation to deliver a tangible medium, which is to be produced, serving exclusively as a carrier of digital content. The provisions of Division 3 Title 2a take the place of the provisions not to be applied in accordance with sentence 1.

(4) The exclusion of application under subsection (2) applies accordingly, in the case of a consumer contract under which the trader enters into obligation to produce a thing that incorporates a digital product or is inter-connected with digital products, to those elements of the contract relating to the digital products. The exclusion of application under subsection (3) applies accordingly, in the case of a consumer contract under which the trader enters into obligation to deliver a thing, which is to be produced, that incorporates a digital product or is inter-connected with digital products, to those elements of the contract relating to the digital products.

Chapter 2 Construction contract

Section 650a Construction contract

(1) A construction contract is a contract on the construction, reconstruction, removal or conversion of a building, an outdoor facility or a part thereof. The following provisions of this Chapter apply supplementally to the construction contract.

(2) A contract on the structural maintenance of a building is a construction contract if the work is of essential significance for the structure, the continued existence, or the use in accordance with the intended purpose.

Section 650b Amendment of the contract; right of the customer to issue orders

(1) Where the customer seeks to obtain

the contractual parties will strive to reach mutual agreement regarding the modification and the augmented or reduced remuneration to be paid, as a consequence of the modification. The contractor is under obligation to prepare an offer for the augmented or reduced remuneration; however, this is the case in the event of a modification pursuant to sentence 1 no. 1 only if the execution of the modification reasonably can be expected of the contractor. Where the contractor asserts internal processes within their operations as the reason for which the contractor cannot reasonably be required to comply with the order pursuant to subsection (1) sentence 1 no. 1, the burden of proof will be incumbent on the contractor. Where the customer is responsible for planning the building or the outdoor facility, the contractor is obliged to prepare an offer for the augmented or reduced remuneration only if the customer has prepared the planning necessary for the modification and has made it available to the contractor. Where the customer is seeking to obtain a modification regarding which the contractor is not entitled to a claim to remuneration of increased expense and effort pursuant to section 650c (1) sentence 2, the parties will strive to reach mutual agreement solely regarding the modification; in such event, sentence 2 does not apply.

(2) If the parties fail to reach mutual agreement in accordance with subsection (1) within 30 days of the contractor having received the request for modification, the customer may order the modification in text form. The contractor is under obligation to comply with the order issued by the customer; however, the contractor is obliged to comply with an order under subsection (1) sentence 1 no. 1 only if the execution of said order reasonably can be required of them. Subsection (1) sentence 3 applies accordingly.

Section 650c Adjustment of remuneration in case of orders pursuant to section 650b (2)

(1) The amount of the claim to remuneration for the expense and effort that, as a consequence of the customer’s order pursuant to section 650b (2), have increased or decreased is to be identified based on the factually required costs, with reasonable surcharges being added for general administrative costs, business risk and profits. Where the contractor’s duty of performance also includes planning the building or the outdoor facility, the contractor will not be entitled, in the case governed by section 650b (1) sentence 1 no. 2, to a claim to remuneration for increased expense and effort.

(2) In calculating the remuneration for the change order, the contractor may take recourse to the calculation approaches used in the initial costing calculation that has been lodged as contractually agreed. It is presumed that the remuneration updated on the basis of the initial costing calculation corresponds to the remuneration pursuant to subsection (1).

(3) Unless the parties have reached an agreement on the amount, or unless a court of law hands down a decision stipulating otherwise, the contractor may, in calculating part payments agreed upon or part payments owed under section 632a, assess 80 per cent of an additional remuneration set out in an offer pursuant to section 650b (1) sentence 2. Where the contractor opts to proceed in this manner and no court decision is handed down that stipulates otherwise, the additional remuneration owed pursuant to subsections (1) and (2) will be due only following acceptance of the work. Payments under sentence 1 that are in excess of the additional remuneration owed pursuant to subsections (1) and (2) are to be repaid to the customer and are to bear interest from the date of their receipt by the contractor. Section 288 subsection (1) sentence 2, subsection (2) and section 289 sentence 1 apply accordingly.

Section 650d Injunction

For an injunction to bei issued in disputes regarding the right to issue orders in accordance with section 650b or the adjustment of remuneration in accordance with section 650c, after construction work has commenced, it is not required that the grounds for seeking such injunction be satisfactorily demonstrated to the court.

Section 650e Mortgage of a building contractor

The contractor may demand, for satisfaction of their claims under the contract, that a mortgage be granted over the building plot of the customer. If the work is not yet completed, then the contractor may demand that a mortgage be granted for a portion of the remuneration corresponding to the work performed and for expenditures not included in the remuneration.

Section 650f Builder’s security

(1) The contractor may demand a security from the customer for the remuneration also agreed in additional commissions and not yet paid, including associated incidental claims, which are to be estimated at 10 per cent of the claim to remuneration that is to be secured. Sentence 1 also applies in the same scope to claims replacing the remuneration. The claim of the contractor for a security is not ruled out by the customer being able to demand performance or of their having accepted the work. Claims with which the customer is able to set off against the contractor’s claim to remuneration are not taken into account in calculating the remuneration unless they are uncontested or have been finally and bindingly established. The security is to be deemed sufficient even if its provider reserves the right to withdraw their promise in case of a substantial deterioration of the financial circumstances of the customer, with effect for claims to remuneration for building work that the contractor has not yet performed when the declaration of revocation is received.

(2) The security also may be provided by means of a guarantee or other promise of payment by a banking institution or credit insurer authorised to operate its business within the territorial extent of this Code. The banking institution or credit insurer may only make payments to the contractor to the extent that the customer recognises the contractor’s claim to remuneration or has been ordered by a provisionally enforceable judgment to pay the remuneration and the prerequisites are met based on which compulsory enforcement may be commenced.

(3) The contractor is to pay to the customer the costs customarily entailed by the provision of security up to a maximum amount of two per cent per year. This does not apply insofar as a security must be maintained because of objections raised by the customer to the contractor’s claim to remuneration and the objections prove to be unfounded.

(4) Insofar as the contractor has obtained a security for their claim to remuneration under subsection (1) or (2), the claim to be granted a mortgage under section 650e is excluded.

(5) If the contractor has set the customer a reasonable time limit to provide the security in accordance with subsection (1) and this has expired without result, the contractor may refuse to carry out the work or may terminate the contract. If the contractor terminates the contract, then they are entitled to claim the agreed remuneration; however, the contractor must allow to be credited against them what they save due to the contract being cancelled or what they acquire or wilfully fail to acquire from other use of their labour. The presumption is that on that basis, the contractor is entitled to five per cent of the remuneration accounted for by the part of the work not yet performed.

(6) Subsections (1) to (5) are not to be applied if the customer is

No. 2 of sentence 1 does not apply if the construction project is managed by a construction agent authorised to dispose over the financial resources of the customer.

(7) Any agreement deviating from subsections (1) to (5) is ineffective.

Section 650g Determination of the status in the case of acceptance being refused; final invoice

(1) Where the customer refuses to accept the work, citing defects, they are to cooperate, upon the contractor so demanding, in a joint determination of the status of the work that has been reached. The joint determination of the status reached is to state the date of its preparation and is to be signed by both contractual parties.

(2) Where the customer fails to attend a meeting agreed for determining the status of the work, or a meeting scheduled by the contractor within a reasonable time limit, the contractor also may determine the status of the work unilaterally. This does not apply if the customer fails to attend due to a circumstance for which they are not responsible and of which they have notified the contractor without undue delay. The contractor is to furnish the unilateral determination of the status with the date on which it was prepared, is to sign it and is to make available to the customer a copy of the unilateral determination of the status.

(3) Where the work has been procured to the customer and the determination of the status under subsections (1) or (2) does not cite any evident defects, the presumption is that such evident defect arose after the determination of the status and is the responsibility of the customer. This presumption does not apply if the defect, by its nature, cannot have been caused by the customer.

(4) The remuneration is to be paid when

The final invoice is auditable if it includes an easily surveyed list of the work performed and is logically understandable to the customer. It is considered auditable unless the customer finds fault, citing their reasons therefor, as to the final invoice’s auditability within 30 days of having received it.

Section 650h Written form of the termination

The termination of the construction contract requires the written form.

Chapter 3 Construction contract with a consumer

Section 650i Construction contract with a consumer

(1) Construction contracts with consumers are contracts by which a contractor is obliged by a consumer to construct a new building, or to perform considerable reconstruction measures on an existing building.

(2) The construction contract with a consumer is to be concluded in text form.

(3) The following provisions of this Chapter apply supplementally to construction contracts with consumers.

Section 650j Specifications

The contractor is to inform the consumer of the details evident from Article 249 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche) in the form provided for therein, unless the consumer or an agent commissioned by the consumer provides the essential planning requirements.

Section 650k Subject matter of the contract

(1) The statements made in the specifications provided prior to the contract being concluded that relate to the execution of the construction work become part of the contract’s content unless the contractual parties expressly have agreed otherwise.

(2) Inasmuch as the specifications are incomplete or unclear, the contract is to be interpreted taking account of the entirety of all circumstances concurrent with the contract, in particular the standards of comfort and quality as evident from the remaining parts of the specifications. Any doubts arising in the interpretation of the contract as concerns the work owed by the contractor inure to the contractor’s detriment.

(3) The construction contract must include binding stipulations regarding the time at which the work is to be completed or, if such a point in time cannot be stated at the time the construction contract is concluded, regarding the duration of the execution of the construction work. Where the contract fails to include these stipulations, the information transmitted prior to the contract being concluded in the specifications concerning the time of completion of the work or the duration of the execution of the construction work will form part of the contract’s content.

Section 650l Right of withdrawal

The consumer is entitled to a right of withdrawal in accordance with section 355 unless the contract was recorded by a notary. The contractor is under obligation to instruct the consumer in accordance with Article 249 section 3 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche) concerning their right of withdrawal.

Section 650m Part payments; security for the claim to remuneration

(1) Where the contractor demands part payments in accordance with section 632a, the aggregate amount of the part payments may not exceed 90 per cent of the total remuneration agreed upon, including the remuneration for work done under change orders under section 650c.

(2) On effecting the first part payment, the consumer is to be provided with a security amounting to five per cent of the total remuneration agreed upon for the timely implementation of the work without major defects. If the claim to remuneration increases by more than 10 per cent as a result of an order by the consumer under sections 650b and 650c or as a consequence of changes or supplements made otherwise to the contract, the consumer is to be provided with a further security of five per cent of the additional claim to remuneration on effecting the next part payment. On demand by the contractor, the security is to be provided by retention such that the consumer retains the part payments up to the total amount of the security owed.

(3) Securities under subsection (2) also may be provided by way of a guarantee or any other payment undertaking by a financial institution or credit insurer authorised to operate its business in the territorial extent of this Code.

(4) Where the contractor demands part payments pursuant to section 632a, an agreement is ineffective that obligates the consumer to provide security for the remuneration agreed upon which is in excess of the next part payment, or in excess of 20 per cent of the total remuneration agreed upon. The same applies if the parties have agreed part payments.

Section 650n Preparation of documents and surrender

(1) In due time prior to commencing the execution of the work owed, the contractor is obliged to prepare those planning documents and to surrender them to the consumer that the latter requires in order to be able to provide proof to the authorities that the work will be executed in compliance with the relevant provisions of public law. The obligation does not exist inasmuch as the consumer or an agent commissioned by the consumer prepares the essential planning requirements.

(2) At the latest upon completion of the work, the contractor is to prepare those documents and to surrender them to the consumer that the latter requires in order to be able to provide proof to the authorities that the work has been executed in compliance with the relevant provisions of public law.

(3) Subsections (1) and (2) apply accordingly if a third party, such as a lender, demands proof of certain conditions being complied with and if the contractor has created the legitimate expectation with the consumer that it is complying with these conditions.

Chapter 4 Mandatory nature

Section 650o Deviating agreements

No agreements in derogation from section 640 (2) sentence 2, sections 650i to 650l or section 650n that inure to the detriment of the consumer may be made. These provisions apply even if they are circumvented by other arrangements.

Subtitle 2 Contract for architectural services and contract for engineering services

Section 650p Contractual duties typical for contracts for architectural and for engineering services

(1) A contract for architectural or for engineering services places the contractor under obligation to perform the work that is required in accordance with the respective status of the planning and execution of the building or of the outdoor facility in order to achieve the planning and supervision objectives agreed upon by the parties.

(2) Insofar as the essential planning and supervision objectives have not yet been agreed upon, the contractor is to initially provide a basic planning concept serving to identify these objectives. The contractor submits to the customer the basic planning concept together with a cost estimate for the project, for the latter’s consent.

Section 650q Applicable provisions

(1) Unless this Subtitle leads to a different conclusion, the provisions of Chapter 1 of Subtitle 1 as well as of sections 650b, 650e to 650h apply accordingly to contracts for architectural and for engineering services.

(2) The rules for calculating compensation as set out in the Scale of Fees for Architects and Engineers (Honorarordnung für Architekten und Ingenieure), as amended, apply to the adjustment of remuneration in the case of orders pursuant to section 650b (2), to the extent that work to be performed or cancelled under the order falls within the scope of application of the Scale of Fees. In all other cases, the adjustment of the remuneration for the increased or reduced expenditure of time and effort based on the performance ordered may be agreed freely. Insofar as the contracting parties do not conclude an agreement, section 650c applies accordingly.

Section 650r Special right of termination

(1) Following submission of the documents pursuant to section 650p (2), the customer may terminate the contract. The right of termination expires two weeks following submission of the documents; in the case of a consumer, however, it expires only if the contractor has informed them, in text form and at submission of the documents, of the right of termination, of the period within which it may be exercised, and of the legal consequences of the termination.

(2) The contractor may set a reasonable time limit for the customer to grant consent pursuant to section 650p (2) sentence 2. The contractor may terminate the contract should the customer refuse to grant such consent or should the customer not make a declaration regarding the documents within the period according to sentence 1.

(3) Where the contract is terminated pursuant to subsection (1) or (2), the contractor will be entitled to claim only that remuneration that accrues for the work performed until termination.

Section 650s Partial acceptance

From the acceptance of the last work performed by the contractor or contractors executing the construction work, the contractor may demand partial acceptance of the work they have performed up to that point.

Section 650t Joint and several liability with the contractor executing the construction work

Where the customer lays claim to the contractor for a deficiency of supervision that has resulted in a defect of the building or of the outdoor facility, the contractor may refuse performance if the construction firm executing the work likewise is liable for the defect and the customer has not yet set a reasonable period for the contractor executing the construction work to cure the defect that has expired without result.

Subtitle 3 Developer contract

Section 650u Developer contract; applicable provisions

(1) A developer contract is a contract that has as its object the construction or the conversion of a house or of a comparable building and that concurrently entails an obligation incumbent on the contractor to assign to the customer ownership of the plot of land or to establish or transfer a hereditary building right. The provisions of Subtitle 1 apply to the construction or the conversion unless the subsequent provisions lead to a different conclusion. The provisions governing purchase apply with regard to the claim to transfer of ownership to the plot of land or to the transfer or establishment of the hereditary building right.

(2) Sections 648, 648a, 650b to 650e, section 650k (1) as well as section 650l and section 650m (1) do not apply.

Section 650v Part payments

The contractor may demand part payments of the customer only insofar as they have been agreed in accordance with statutory instrument based on Article 244 of the Introductory Act to the Civil Code.

Subtitle 4 Package travel contract, brokerage of travel contracts and brokerage of linked travel arrangements

Section 651a Contractual duties typical for a package travel contract

(1) By a package travel contract, the trader (organiser) is obliged to procure a package to the traveller. The traveller is obliged to pay the organiser the agreed price of the package.

(2) A package is a complete set comprised of at least two different types of travel services for the purpose of the same trip. A package is given also if

(3) Travel services within the meaning of this Code are

Travel services that intrinsically are part of a different travel service are not deemed travel services under sentence 1.

(4) No package is given if only one type of travel service within the meaning of subsection 3 sentence 1 no. 1 to 3 is combined with one or several tourist services within the meaning of subsection 3 sentence 1 no. 4 and if the tourist services

Tourist services do not represent a significant share in the total value of the combination within the meaning of no. 1 of sentence 1 if they account for less than 25 per cent of the total value.

(5) The provisions on package travel contracts do not apply to contracts on trips that

Section 651b Delimitation from brokerage

(1) Notwithstanding sections 651v and 651w, the general provisions apply to the brokerage of travel services. However, a trader cannot invoke their brokering solely contracts with those persons who are to provide all of the travel services or individual of them (service provider) where at least two different types of travel services are to be provided to the traveller for the purpose of the same trip and

In these cases, the trader is the organiser. The booking process within the meaning of sentence 2 no. 1 is not commenced already when inquiries are made of the traveller regarding their travel requirements and they are merely advised on the travel options on offer.

(2) The following are points of sale within the meaning of this Code:

Where several different websites and similar online sales facilities under no. 2 of sentence 1 create the impression of a uniform appearance, they will constitute a point of sale.

来源：gesetze-im-internet.de，Bürgerliches Gesetzbuch (BGB)，German Civil Code — English translation（Book 2）。逐字收录原文，未作修改。德国法律依《著作权法》§ 5 Abs. 1 UrhG 不受著作权保护。