Why incorporation is necessary
Without agreement, a construction contract is governed by the general law of works contracts in the Civil Code, with its special provisions for construction contracts. A contract without the VOB/B is therefore not unregulated, merely regulated differently.
The VOB/B takes its place so far as it provides differently, and it does so on four material points. Each of them acts directly on the account.
| Area | Where the VOB/B diverges |
|---|---|
| Variations | its own rules for changed and additional work and for quantity variations |
| Handover | its own forms and effects, including deemed handover |
| Defect claims | its own periods, differing from the statutory ones |
| The final account | joint measurement and requirements for a verifiable account |
For the cost side, incorporating the VOB/B also incorporates the VOB/C. Without it the measurement rules of the ATV do not apply, and neither do the deduction rules, which changes the final account materially. The system is covered in the article on the deduction rules.
What incorporation requires
The VOB/B is classified in law as standard terms of business. Its incorporation therefore follows the general rules and presupposes three things.
| Condition | Content |
|---|---|
| An express reference | by the party using it, to its application |
| A reasonable opportunity to take notice | for the other party, of its content |
| The other party's agreement | to its incorporation |
Between construction businesses a reference generally suffices, because the VOB/B can be assumed known. Towards a party outside the construction industry, stricter requirements apply, and these regularly include handing over the full text.
A simple precaution follows: the VOB/B is attached to the tender documents and its application expressly agreed in the contract conditions. The effort is small; the consequence of failed incorporation is substantial.
What is particular towards consumers
Here lies the most important point of this article, and it is regularly underestimated in practice. It concerns not the incorporation but the validity of the clauses incorporated.
The VOB/B is a balanced body of rules weighing the rights and duties of both sides. Where it is agreed unaltered and as a whole, the courts long accorded it a special position in the review of terms.
That special position does not, however, apply towards consumers. Individual clauses of the VOB/B are then subject to full review and may be ineffective, without the contract as a whole failing.
The practical consequence is substantial: a construction contract with a private client incorporating the VOB/B is not automatically effective in every respect. Which clauses are affected is a question of the individual case and should be assessed legally.
For measurement this means in particular that the deduction rules of the VOB/C are not readily applicable towards a private client who did not themselves propose applying the VOB. Those are precisely the rules with the greatest effect on the final account.
What altering the text does
A second point concerns that same special position. It presupposes that the VOB/B is agreed unaltered and as a whole.
Where even one clause is excluded or amended, that precondition falls away and every clause becomes subject to review. That holds regardless of how minor the change is and in whose favour it operates.
A recommendation follows that runs against common practice: supplementary contract conditions departing from the VOB/B change its legal standing. Anyone wishing to preserve the special position agrees the VOB/B unaltered and regulates departures without intervening in its text.
Whether and to what extent these principles apply in a given case should be assessed legally. The case law is extensive and finely drawn.
The link to the VOB/A
For public clients a link exists that effectively pre-empts incorporation. It arises from the VOB/A itself.
The VOB/A provides that the VOB/B is to be made part of the contract. For public construction contracts incorporation is therefore the default, effected through the tender documents.
That does not apply to private clients. They decide freely whether to incorporate the VOB/B or to remain with the statutory law of works contracts. Both are permissible, and the choice has consequences to be weighed before contract.
What follows for drafting
Four points belong settled before a construction contract is concluded. None of them can afterwards be changed unilaterally.
| # | To be settled | Why |
|---|---|---|
| 1 | Whether the VOB/B is to apply | for private clients, also whether the rules it brings are wanted |
| 2 | How incorporation is effected | in particular, whether the text is supplied |
| 3 | Which edition applies | because the VOB is maintained |
| 4 | Whether departing contract conditions are agreed | because any departure changes the legal standing of the VOB/B |
The fourth point is most often skipped, because supplementary conditions are treated as standard. Their effect on the VOB/B nonetheless bears consideration.
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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.