1896de Book2 Chapter07 Title07

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

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Chapter VII. Particular Kinds of Obligations.

Title VII. Contract for Work.

Section 631.

• [I] By a contract for work the contractor is bound to produce the work promised, and the employer is bound to pay the remuneration agreed upon.
• [II] The object of the contract for work may be either the production or alteration of a thing, or any other result to be brought about by labour or performance of service.

Section 632.

• [I] Remuneration is deemed to have been tacitly agreed upon if, under the circumstances, the production of the work is to be expected only for remuneration.
• [II] If the amount of the remuneration is not specified, and if there is a tariff, the tariff rate of remuneration, or, in the absence of a tariff, the usual remuneration is deemed to have been agreed upon.

Section 633.

• [I] The contractor is bound so to produce the work that it has the promised qualities and is not affected with defects which destroy or diminish its value or fitness for its ordinary or stipulated use.
• [II] If the work is not of such quality, the employer may demand the removal of the defect. The contractor is entitled to refuse such removal if it requires disproportionate outlay.
• [III] If the contractor is in default in respect of the removal of the defect, the employer may himself remove the defect and claim compensation for the necessary expense.

Section 634.

• [I] The employer may allot to the contractor a reasonable period for the removal of the defect of the kind specified in 633 with a declaration that he will not permit the removal of the defect after the expiration of the period. If a defect has already been discovered before the delivery of the work, the employer may fix the period forthwith ; the period must be so fixed that it does not expire before the period fixed for delivery. After the expiration of the period the employer may demand the annulment of the contract (i.e., cancellation), or reduction of the remuneration (i.e., reduction), unless the defect has been removed in due time; the claim for removal of the defect is barred.
• [II] The fixing of a period is not necessary if the removal of the defect is impossible, or is refused by the contractor, or if the immediate enforcement of the claim for cancellation or reduction is justified by a special interest of the employer.
• [III] The right to demand cancellation is barred if the defect diminishes only insignificantly the value or fitness of the work.
• [IV] The provisions of 465 to 467, 469 to 475 applicable to sale apply mutatis mutandis to the cancellation and reduction.

Section 635.

• If the defect in the work is caused by a circumstance for which the contractor is responsible the employer may demand compensation for non-fulfilment, instead of cancellation or reduction.

Section 636.

• [I] If the work is wholly or in part not produced in due time, the provisions of 634, pars. 1 to 3, applicable to cancellation, apply mutatis mutandis ; the right of the employer to rescind the contract under 327 takes the place of the claim for cancellation. The rights of the employer in the case of the default of the contractor remain unaffected.
• [II] If the contractor contests the permissibility of the rescission on the ground that he has produced the work in due time, the burden of proof is upon him.

Section 637.

• An agreement whereby the obligation of the contractor as to responsibility for a defect in the work is released or limited, is void if the contractor fraudulently conceals the defect.

Section 638.

• [I] The claim of the employer for removal of a defect in the work and his claims for cancellation, reduction, or compensation on account of the defect are barred by prescription, unless the contractor has fraudulently concealed the defect, in six months; in the case of work on land, in one year; in the case of work on buildings, in five years. The prescription begins to run from the cessation of the work.
• [II] The period of prescription may be extended by contract.

Section 639.

• [I] The provisions of 477, pars. 2,3, and 478, 479, applicable to the prescription of claims of a purchaser, apply mutatis mutandis to the prescription of the claims of the employer specified in 638.
• [II] If the contractor, by agreement with the employer, submits an investigation into the existence of a defect or of the removal of the defect, the prescription is suspended until the contractor informs the employer of the result of the investigation, or declares to him that the defect is removed, or refuses to effect the removal.

Section 640.

• [I] The employer is bound to take delivery of the work completed according to contract, unless this is impossible by reason of the nature of the work.
• [II] If the employer accepts a defective work, although he knows of the defect, the claims specified in 633, 634 belong to him only if at the time of acceptance he reserves his rights on account of the defect.

Section 641.

• [I] The remuneration is payable at the time of taking delivery of the work. If the work is to be accepted in parts and the remuneration has been specified for the several parts, the remuneration for each part is payable at the time of its acceptance.
• [II] Remuneration specified in money bears interest from the time of acceptance of the work, unless a future time is fixed for its payment.

Section 642.

• [I] If, in the production of the work, an act by the employer is necessary, and if he is in default of acceptance by not performing the act, the contractor may demand reasonable compensation.
• [II] The amount of the compensation is determined, on the one hand, by the duration of the default and the amount of the remuneration agreed upon, and on the other hand, according to what the contractor has saved in expenditure on account of the default, or is able to acquire by a different application of his energy.

Section 643.

• The contractor is entitled, in the case provided for by 642, to allot to the employer a fixed reasonable period to do the act with a declaration that he will terminate the contract, if the act is not performed before the expiration of the period. The contract is deemed to be annulled if performance is not effected before the expiration of the period.

Section 644.

• [I] The contractor bears the risk before acceptance of the work. If the employer is in default of acceptance, the risk passes to him. The contractor is not responsible for accidental destruction or accidental deterioration of the material provided by the employer.
• [II] If the contractor forwards the work at the request of the employer to a place other than the place of performance, the provisions of 447 applicable to sale apply mutatis mutandis.

Section 645.

• [I] If the work, before its acceptance by the employer, is destroyed, or damaged, or becomes impracticable in consequence of a defect in the material provided by the employer, or in consequence of instructions given by him for its execution, without any contributory circumstance for which the contractor is responsible, the contractor may demand a part of the remuneration proportionate to the labour performed, and compensation for any outlay not included in the remuneration. The same rule applies if the contract is annulled under 643.
• [II] A further liability of the employer on account of his fault remains unaffected.

Section 646.

• If the nature of the work is such that delivery is impossible, the completion of the work takes the place of delivery in the cases provided for by 638, 641, 644 and 645.

Section 647.

• The contractor has, by way of security for his claims arising from the contract, a right of pledge over the moveables of the employer produced or repaired by him, if they have come into his possession in the course of production or for the purpose of repairing.

Section 648.

• A contractor who undertakes to construct a building or any part of a building may, by way of security for his claims arising from the contract, require the concession of a cautionary hypotheca on the building ground of the employer. If the work is not yet complete, he may require the concession of a cautionary hypotheca by way of security for a part of the remuneration proportionate to the labour performed, and for any outlay not included in the remuneration.

Section 649.

• The employer may, at any time before the completion of the work, give notice to terminate the contract. If he gives such notice, the contractor is entitled to claim the remuneration agreed upon; the contractor must, however, deduct what he saves in expenses in consequence of the annulment of the contract, or what he acquires or maliciously omits to acquire by a different application of his energy.

Section 650.

• [I] If the contract is based upon an estimate of cost without the contractor assuming to guarantee the correctness of the estimate, and it proves that the work is not practicable without largely exceeding the estimate, and if the contractor terminates the contract for this reason, the contractor has only the claim specified in 646, par. 1.
• [II] If such exceeding of the estimate is to be expected, the contractor shall give notice to the employer without delay.

Section 651.

• [I] If the contractor binds himself to produce the work from material provided by him, he shall deliver the thing produced to the employer and convey ownership in the thing. The provisions applicable to sale apply to such a contract; if a non-fungible thing is to be produced, the provisions relating to contract for work, with the exception of 647, 648, take the place of 433, 446, par. 1, sentence 1, and of 447, 459, 460, 462 to 464, 477 to 479.
• [II] If the contractor binds himself only to provide additions or other accessories, the provisions relating to contract for work apply exclusively.