Construction contracts – categorisation as an exchange structure open to modification and dogmatics of modification and cooperation

• Applicant: Dr. Sören Segger-Piening
• Subject Area: Private Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 558407912

The construction contract is a highly relevant type of contract in practice. At the same time, it has received little academic attention. This work attempts to close this gap. To this end, a comprehensive examination of construction contracts is undertaken. The aim is to work through the fundamentals of the dogmatics of the construction contract in an interdisciplinary and comparative manner and establish its categorisation as a modification-open exchange structure. In a first step, the realities of the construction contract and the associated legal tasks are to be identified with recourse to the civil engineering sciences. Based on this, economic problems as well as possible economic solutions of the construction contract are to be emphasised. This broad interdisciplinary basis leads to the dogmatic and comparative legal analysis of the construction contract. Initially, the thesis that the construction contract is a foreign body in the concept of the contract for work and labour is developed. By means of an analysis of the legal sources examined, in particular with regard to systematics and development as well as the main performance obligations of the construction contract, the first elements of the modification-open exchange structure are then presented: Specification of performance by reference to technical regulations, the transition from a spot exchange mediated by taking-over to a stretched exchange by means of partial taking-over as well as interim payments and finally relativity breakthroughs in the payment of the contract price as an expression of multi-sidedness. Modification and co-operation must then be established as part of the risk structure under the law of obligations. The first objective in this context is to analyse the general principles of the risk structure and to establish the method of responsibility-based risk allocation as a specific approach to questions of risk allocation under the law of obligations. The study then aims to analyse various contractual forms of the construction contract and the corresponding contractual risk models and to identify further elements of the modification-open exchange structure with the variety of contractual forms and the specification of performance through requirements for the description of performance. The dogmatics of modification then provides an answer to the incompleteness of the construction contract and categorises the omnipresent contract amendments. The aim is also to clarify the heteronomous allocation of risk through modification and to solve the functionality problem at the fulfilment stage. For the first time, the study of co-operation creates a comparative legal and legal-economic understanding of this ambiguous term and transfers it to the discussion on participation of the creditor as well as duties of inspection and notification. A comprehensive overall conclusion clarifies the yield and need for reform in construction contract law.

• DFG Programme: Publication Grants