CMS Hasche Sigle

Stuttgart, Germany

CMS Hasche Sigle

Stuttgart, Germany
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Rohr-Suchalla K.,CMS Hasche Sigle | Wolfgramm B.,CMS Hasche Sigle
Beton- und Stahlbetonbau | Year: 2014

Ensuring defect-free sealing of a building is of utmost importance if it is to be fit for use. As a result, the requirements imposed by German case law on the planning and execution of impermeable buildings under case law are very high. To avoid damage and liability the parties involved in construction must take account of the requirements they are expected to fulfil. The principal may specify the attributes and the quality (Beschaffenheit) of the building to the contractor. These may go beyond the recognised rules of technology, in which case this will be a decisive factor in judging whether the construction is free of defects. The architect commissioned by the principal to design the impermeable construction must always choose the safest planning option, which he can be entirely sure will satisfy the specific requirements. © 2014 Ernst & Sohn Verlag für Architektur und technische Wissenschaften GmbH & Co. KG, Berlin. Beton- und Stahlbetonbau Spezial.


Rohr-Suchalla K.,CMS Hasche Sigle
Betonwerk und Fertigteil-Technik/Concrete Plant and Precast Technology | Year: 2014

The article discusses how to pass liquidated damages on to sub-contractors. If the principal asserts a claim against the general contractor on the grounds of delayed completion of the construction work due to a culpable breach of contractual duty by a sub-contractor, the general contractor is faced with the issue of whether or not it may pass on the claim asserted by the principal to its sub-contractor. Two different cases need to be distinguished when determining if the general contractor may pass on the principal's claim for liquidated damages to its sub-contractor. If such a claim is lodged against the sub-contractor, the only defense available to the sub-contractor is contributory negligence pursuant to section 254 BGB, provided the general contractor has not sufficiently notified, or failed to notify, the sub-contractor of the economic risk arising from the existing liquidated damages clause agreed upon with the principal prior to entering into the subcontracting agreement or during work performance.


Rohr-Suchalla K.,CMS Hasche Sigle
Betonwerk und Fertigteil-Technik/Concrete Plant and Precast Technology | Year: 2013

Knowledge of the parties to the contract, of the legal nature of the contract entered into by these parties and of the resulting rights and duties is crucial to mitigate risks and to appropriately deal with conflicts in the course of contractual performance within the case law pertaining to the precast element contract. Due to the classification as a contract for work and materials, the purchase of precast elements is governed by the provisions on commercial sale transactions if both buyer and seller are merchants. In the event of non-compliance with the provisions set forth in section 377 HGB, the goods are deemed accepted, resulting in the exclusion of any claim that the buyer may otherwise assert on the grounds of warranty for defects. In the case of a commercial sale transaction the buyer must immediately inspect the goods delivered pursuant to section 377 et seq. HGB, which includes, as a minimum, a random check of each part delivery.


The construction industry is one of the sectors where many disputes arise because of inter alia delays, changes in the scope of the assignment or warranty claims. There are several methods of out-of-court settlements, mediation, conciliation, and expert determination. A mediator supports the parties in dispute in developing a solution to their conflict themselves. The only responsibility of the mediator is to ask appropriate questions and to act as a facilitator in the process. Mediators have no decision-making authority. The conciliation procedure also aims to develop an economically sound solution, rather than to evaluate the case from a legal standpoint. It might be a good idea to involve an expert if the dispute arises from specific issues, such as the suitability for acceptance of a particular work, the detection of defects or the determination of price reductions. The parties in dispute jointly select the expert depending on the requirements for the issue to be resolved on the basis of his/her specific legal or technical expertise.

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