The two fields
| Public building law | Private building law | |
|---|---|---|
| Governs | the relationship between client and state | the relationship between the parties |
| Asks | may building take place, and how | what is owed and who is liable |
| Sources | federal building code, state codes, sectoral law | Civil Code, VOB/B, the contract |
| Enforcement | building authority, administrative courts | contracting parties, civil courts |
Both apply alongside one another and independently. A building consent says nothing about whether a construction contract has been performed, and a defect-free work may be impermissible under public law.
Public building law in two levels
Within public building law a further division exists that matters more in practice than the first. It runs between federal and state law.
| Field | Level | Question | Source |
|---|---|---|---|
| Planning law | federal | whether and for what use building may take place at a location | the Federal Building Code |
| Building regulations law | state | how the individual building must be constituted | the sixteen state building codes |
A project must pass both assessments, and they are independent. The article on how the fields of law divide covers the system in detail.
Sectoral law is added, covering nature conservation, emissions control, water law, heritage protection and other matters that may require their own consents or consultations. It stands alongside the two levels and is not covered by them.
Private building law
It governs what applies between the parties, that is between client and designer, between client and contractor, between contractor and subcontractor. Its standards are independent of consent law.
The basis is the law of works contracts in the Civil Code, with special provisions for construction contracts. Where the VOB/B is incorporated it takes their place so far as it provides differently. The branch on the VOB/B within the tendering subject covers its incorporation.
For design services, fee law is added, governing the calculation of remuneration but not the scope of services. The subject area on HOAI work phases covers it.
Why the separation matters in practice
Three situations show that the distinction is more than a taxonomy. All three cost money in a dispute.
| Situation | What follows |
|---|---|
| A consent is not a certificate of freedom from defects | it certifies permissibility under public law within the scope examined and nothing beyond |
| A simplified procedure shifts responsibility, not the requirements | what the authority does not examine must still be observed |
| The roles differ | site management under state law is a public law function, construction supervision a contractual one |
Where technical standards sit
Technical standards such as DIN standards operate in both fields, but differently. The difference lies in the ground of their binding force.
| Field | How technical standards operate |
|---|---|
| In public building law | individual standards are introduced by administrative provisions and thereby acquire binding force |
| In private building law | they operate through the recognised rules of technology, whose observance the contractor owes |
In both cases: DIN standards are not legal norms but private technical rules of a recommendatory character. Binding force arises only through introduction or agreement.
What follows for project work
Two assessments run in parallel and must not be conflated. One concerns the consent, the other the contract.
The public law assessment establishes permissibility: planning law, building regulations law, sectoral law. Its outcome is consent or the absence of any need for it.
The private law assessment establishes the result owed: contract, recognised rules of technology, agreed characteristics. Its outcome is freedom from defects.
The two can come out differently, and both must be passed. A consented building may therefore be defective under the contract.
Related articles
This article reflects the position of the rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.