Damage during the construction phase according to VOB: Recognizing risks and avoiding liability pitfalls
Basics and importance of damage during the construction phase according to VOB
The emergence of damage during the construction phase according to VOB is an important topic that concerns us all – clients and contractors alike – and can often lead to significant financial and time burdens. What exactly do we mean by this? Essentially, it includes all unforeseen impairments or destructions of the construction performance that occur before the official acceptance. The German Construction Contract Procedures (VOB), particularly Part B (VOB/B), is the pivot here since it primarily regulates the contractual relationships and liability issues in the German construction sector. If you don’t understand this, you risk costly misunderstandings and lengthy disputes. That’s why it’s so important to know the specific clauses of VOB/B that define how to deal with such construction-related damages according to VOB– compliant and thus create a solid foundation for all project participants. We help you navigate this complexity and proactively manage risks.
- Definition: Unforeseen impairments or destructions of the construction performance before acceptance.
- VOB/B as a regulatory framework: Regulates contractual relationships and liability issues in the construction sector.
- Risk minimization: Knowledge of VOB/B clauses avoids costly misunderstandings.
- Goal: Creating a solid foundation for all project participants in dealing with damage.
Typical damage cases and the relevance of VOB
What can go wrong? The range of potential issues spans from weather influences like storms or heavy rain to vandalism and theft of permanently installed parts, as well as execution errors or material defects. Damage caused by third parties or inadequate security measures on the construction site also frequently occurs. The VOB/B sets clear rules here about who bears responsibility in such cases and how damage compensation should be handled, especially before the acceptance. A critical point is often the performance risk, which fundamentally lies with the contractor until acceptance. In plain terms: He must bear the costs for accidental damage or destruction of his performance up to that point, even if it was bad luck. A precise understanding of these regulations is essential for acting according to construction damages according to VOB– appropriately and avoiding financial disadvantages. Careful construction documentation is invaluable in this context.Liability for construction damages according to VOB: Who pays when and why?
Clearly defining responsibilities: Builder, construction company, and architect
The key question is often: Who has to pay if something goes wrong during the construction phase? And yes, this can be tricky. The rule of thumb is: Until the acceptance acceptance, the construction company (i.e., the contractor) is responsible for damage during the construction phase according to VOB (§ 644 Abs. 1 Satz 1 BGB). Translated into plain language: The company must repair the damage at its own expense. But be careful, the builder (client) is not always in the clear. He is liable if damages arise from unsuitable materials or faulty instructions he provided, unless the contractor failed to raise concerns in a timely manner. Architects can also be held accountable if damages stem from their faulty planning or inadequate construction supervision, as defined in the tasks of construction supervision . That’s why our advice is: Clear contracts and comprehensive documentation of all agreements and concerns are crucial for all parties involved to clarify liability issues in the event of damages and avoid lengthy disputes over such construction damages .
- Contractor (construction company): Bears the primary responsibility for damages until acceptance and must rectify them (§ 644 Abs. 1 Satz 1 BGB).
- Client (builder): Liable for damages caused by unsuitable materials or faulty instructions, unless the contractor has raised concerns.
- Architect: Can be held liable for damages due to faulty planning or inadequate construction supervision.
- Prevention: Clear contracts and comprehensive documentation are crucial for clarifying liability.
Transfer of risk and the critical role of acceptance
A key term here is the transfer of risk. This is the moment when the risk of damage shifts from the contractor to the client, which is generally the acceptance of the construction performance according to VOB/B and BGB (§ 12 VOB/B). Until then, the risk for unforeseen accidents or destruction of the work rests with the contractor, even if he is not at fault. This includes damages caused by force majeure or vandalism. Our tip: A formal acceptance with a clean protocol is invaluable here. But as always, there are exceptions, such as early risk transfer if the client, for example, delays acceptance. Knowing this can help you act VOB-compliant in construction damage cases according to VOBand correctly assign liability. A construction expert during the construction phase can often be a great help.Construction performance insurance: Ensuring financial protection against construction damages
Comprehensive protection through all-risk coverage
Imagine having a shield against financial surprises during construction: the construction performance insurance (sometimes also called construction insurance). The great thing about it: It is a sort of all-inclusive package (all-risk coverage). This means it generally covers all damages that are not explicitly excluded in the contract. What does it include? For instance, damages due to unusual weather conditions (except seasonally typical ones like frost in winter), negligence of those involved in the construction, theft of permanently installed parts, vandalism, unknown properties of the building ground, as well as construction and material defects. Especially because the contractor bears the full risk until acceptance, this insurance is vital. It can cover the costs of repair or replacement and thus secure the financial stability of the project and the involved companies in the event of damage during the construction phase according to VOB: die Bauleistungsversicherung (manchmal auch Bauwesenversicherung genannt). Das Tolle daran: Sie ist eine Art All-inclusive-Paket (Allgefahrendeckung). Das bedeutet, sie deckt grundsätzlich alle Schäden ab, die nicht explizit im Vertrag ausgeschlossen sind. Was ist da so alles drin? Zum Beispiel Schäden durch ungewöhnliche Witterungseinflüsse (außer saisonal übliche wie Frost im Winter), Fahrlässigkeit der am Bau Beteiligten, Diebstahl fest eingebauter Teile, Vandalismus, unbekannte Eigenschaften des Baugrunds sowie Konstruktions- und Materialfehler. Gerade weil der Auftragnehmer bis zur Abnahme das volle Risiko schultert, ist diese Versicherung so wichtig. Sie kann die Kosten für Reparatur oder Ersatz stemmen und somit die finanzielle Stabilität des Projekts und der beteiligten Unternehmen bei such damage cases according to VOB-compliant. A clever proactive risk management considers such insurance.
Extensions and cost distribution of the construction performance insurance
The basic coverage of the construction performance insurance can often be expanded cleverly. For example, consider a fire construction insurance (if not already separately covered), damages from floods, or the theft of materials not yet permanently installed. And if you are remodeling or renovating, it is crucial to ensure coverage for damages to existing parts of the building. A huge advantage of such insurance: The handling of claims becomes much simpler, as it can often replace policies from various trades, planners, and architects, thus reducing disputes about responsibilities. And who pays for it all? The costs of the construction performance insurance can be proportionally passed on by the developer or general contractor to the involved trades, as they also benefit from the insurance coverage. It is important that this is clearly stated in the tender documents or performance descriptions for handling construction damages during the construction period according to VOB are regulated.Warranty according to VOB/B: How to secure your rights in case of construction defects
Understanding fundamental principles and deadlines of VOB/B warranty
The warranty period begins after acceptance! According to § 13 VOB/B, the contractor must ensure that his performance at the time of acceptance meets the agreed quality and is free from defects that reduce its value or suitability. Thus, if defects arise within the warranty period that were already present at the time of acceptance, the contractor must rectify them at his own cost. Normally, this period is four years after VOB/B for buildings. For specific items, such as mechanical and electrical systems without a maintenance contract, it is two years. A small but important difference: There is a renewed two-year limitation period for parts that have been rectified after a defect removal. These deadlines are super important when damage during the construction phase VOB only becomes apparent later as defects. A clever defect management is truly invaluable.
- Principle (§ 13 VOB/B): Contractor is liable for defect-free performance at acceptance.
- Obligation to remedy defects: Defects arising within the period must be rectified at no cost.
- Standard deadlines: Four years for buildings, two years for certain technical systems (without maintenance contract).
- Limitation period for rectification: Renewed two-year period for rectified parts.
Acceptance, defect notification, and the pitfalls of the burden of proof
The warranty period starts only after acceptance. This can happen officially with a protocol, but also tacitly through usage or even fictitiously (e.g., 12 working days after written completion notification). For the client, it is crucial to always report defects in writing and within a deadline to secure his claims. The excitement arises with the burden of proof: Before acceptance, the contractor must demonstrate that everything is in order. After that, the client must prove the existence of the defect. This further underlines how important a thorough check and documentation before and during acceptance is, to avoid later discussions regarding original construction damages, which are classified as defects. Digital tools for the digital defect recording in construction are a real relief and increase transparency.
Important aspects of warranty management
To keep you from losing track, systematic warranty management is essential. What does it include?
- Deadline monitoring: Tracking of all relevant warranty periods.
- Regular inspections: Early detection of potential defects.
- Comprehensive documentation: Recording of all defect notifications, communications, and rectification work, ideally supported by an construction diary app for efficiency and organization on the construction site.
- Coordination of defect rectification: Ensuring timely and proper repair.
Digital tools make it much easier and more transparent – a real blessing, especially for large projects with many people and potential damage risks during the construction phase according to VOB.Documentation and communication: Proactive strategies against construction damages and liability risks
The power of comprehensive documentation to avoid disputes
We can’t emphasize this enough: Comprehensive and accurate documentation is crucial for every construction project and your best friend in dealing with damage during the construction phase according to VOB. Think of detailed construction diaries, protocols from meetings, photos of the construction progress (and problem areas!), and all written correspondence. These documents (or digital data) are not only valuable for tracking everything and ensuring quality – in serious cases, they are often your most important asset. Especially when it comes to who is responsible for such construction damages according to VOB or for construction delays according to VOB the one in charge, a clean documentation history is invaluable. Modern digital tools, like those we develop at Valoon, significantly simplify the recording and centralized storage of this data by converting communications over messenger directly into structured project data, thus reducing administrative effort.
Clear communication and strict adherence to notification obligations
At least as important as good documentation is the open and honest communication between all parties involved. Did you know? According to § 4 Abs. 3 VOB/B, the contractor must speak up if he has concerns about the intended method of execution, the quality of materials provided by the client, or the performance of other contractors. And he must do so quickly and in writing to the client. Documenting these concerns properly is super important to avoid being blamed for the mistakes of others in the event of damage events in construction according to VOB . Proactive communication prevents misunderstandings and can often extinguish problems before they cause expensive issues during the construction phase VOB . A clever change order and defect management according to VOB/B builds exactly on that.Force majeure and unavoidable events: Mastering special regulations of VOB/B
§ 6 Abs. 5 VOB/B: Compensation for extraordinary circumstances
Sometimes life just goes crazy. For such cases, VOB/B has a special regulation in § 6 paragraph 5: if construction execution is stopped by force majeure, war, riot, or other factors that the contractor truly could not and did not prevent. In that case, the contractor at least gets paid for what he has already delivered. This is a clear exception to the rule that the contractor bears the performance risk until acceptance. The catch is often proving that such an event was truly “objectively unavoidable.” Meticulous documentation of the circumstances and already rendered performance is key here to assert claims in case of damage during the construction phase VOB such events. And yes, the contractor must prove this.
Conflict avoidance and joint problem-solving as a priority
Sure, VOB/B has rules for emergencies and for such damage cases according to VOB. But to be honest: It’s best if disputes never arise, right? When something unforeseen happens or there’s damage, talking to each other and collaboratively seeking solutions is usually the quickest and cheapest approach for everyone. Endless disputes in court before acceptance? They usually only cost time, money, and nerves – for everyone involved. If you work collaboratively, have clear contracts, and document everything properly, most problems related to construction damages in this phase can be resolved without court involvement. Should you need support in optimizing your project documentation and communication to minimize such risks, we are here to assist you with our expertise. Contact us today, to find out more about how we can help you make your construction projects more efficient and safer.
Who is liable for damages during the construction phase according to VOB before acceptance?
Basically, the contractor (construction company). He bears the risk for accidental damages or destruction of his performance until official acceptance (according to § 7 VOB/B and § 644 BGB).
What happens if the client provides unsuitable materials or gives faulty instructions?
The contractor must immediately and documentarily report concerns in writing (according to § 4 Abs. 3 VOB/B). If he fails to do so, he can be liable for the damage arising from it despite the client’s fault.
What role does construction performance insurance play in damages during the construction phase?
It provides financial protection against unforeseen damages to the construction performance before acceptance, such as from storms, vandalism, or negligence. It is especially important for the contractor, as he bears the full performance risk until acceptance.
When does the warranty period according to VOB/B begin and how long does it usually last?
The warranty period begins with the acceptance of the construction performance. For buildings, it usually lasts four years (according to § 13 Abs. 4 Nr. 1 VOB/B). Shorter periods may apply for certain other works.
What is a key difference between the warranty according to VOB/B and the BGB in case of construction defects?
An important difference is the limitation periods: VOB/B often stipulates four years for buildings, while the BGB stipulates five years. Additionally, VOB/B contains more specific regulations regarding defect removal and for the limitation of rectified parts (again two years according to § 13 Abs. 5 Nr. 1 Satz 2 VOB/B).
Why is comprehensive documentation so important in case of construction damages according to VOB?
Comprehensive documentation (construction diary, photos, protocols, correspondence) is crucial for clarifying liability issues, serves as evidence, and helps avoid costly disputes. Tools like Valoon simplify this through direct, structured capture of information via messenger.
What is meant by “force majeure” in the context of construction damages according to VOB/B?
Force majeure (according to § 6 Abs. 5 VOB/B) encompasses objectively unavoidable, external events (e.g. natural disasters, war, riot) that the contractor cannot be held responsible for. In such cases, the contractor may be entitled to remuneration for already rendered and documented performance .
How can software like Valoon help minimize risks during construction phase damage?
Valoon optimizes communication and project management by simplifying data collection on-site (e.g., damage or concerns via WhatsApp) and sustainably improves the flow of information between field and office. This leads to faster reaction times and a proof-secure documentation, significantly reducing risks and follow-up costs.
