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Sayfa 247CONSUMER PROTECTION IN CONSTRUCTION CONTRACTS IN GERMANY - STATUS QUO AND CURRENT DEVELOPMENTS
Jochen GLÖCKNER…
Construction contracts are a latecomer in the ever-growing family of Consumer Law (I.). Nevertheless even in the past consumer-employers in construction contracts benefitted of a series of protective instruments in Germany (II.). Only very recently attempts have been made to further the degree of protection. Legislation just has finalized. The upcoming provisions will be outlined (III.). Finally, the necessary follow-up will be sketched (IV.). …
Consumer Protection in Construction Contracts – Why So Late?
Modern Consumer law looks back at more than 50 years of history. It originated in…
Western Europe didn’t take long to embark on the same train: in 1972, the Council…
Viewed against this backdrop the lack of particular protective provisions for construction…
Need for Consumer Protection
Almost one half of the total assets of private German households is invested in real…
Typically, such contracts stress the purchasers‘ or employers’ financial capacities…
Even where insurances against fundamental risks such as sickness, disabilities or…
In spite of the potentially fundamental risks that may include the loss of the consumer’s…
Reasons for the Time Lag
The central reason for that lagging behind of consumer protection in the field of…
In the Framework of EU Law
With regard to market integration EU law ever since the negotiations on a Treaty…
In a similar vein contracts for the purchase and sale of real property, much different…
EU legislative powers are mainly founded on the establishment and functioning of…
For a long time, this goal as created in the Maastricht Treaty 1992 was applied primarily…
In the Mindset of People
Without any form of empirical evidence one assumption at least gives a further plausible…
Today, the political ideas of 1968 have become main stream and the protagonists of…
Taking up Speed and Momentum
In Germany the conservative-liberal coalition after the 2009 elections agreed to…
Things are less clear with regard to consumer protection in the course of contracts…
Consumer protection As afforded by Existing Laws and Regulations
Qualification of Construction Contracts As Contracts to Produce A Work Pursuant to Sec. 633 GCC
Despite the lack of specific measures of consumer protection, a solid foundation…
Contractor Owes Result
The qualification as a works contract encompasses the contractor’s strict duty to…
The scope of application of physical impossibility pursuant to Sec. 275(1) GCC is…
Even the employer‘s own involvement in the failure to achieve the owed result, e.g.…
In Conformity with the Contract
Moreover, the qualification as a works contract makes applicable the statutory concretization…
An extensive protection of the employer’s justified expectations as to quality is…
Obligation to Examine Building Material, Plans and Directions Supplied by the Employer
If the contractor fails to examine the employer’s materials, plans or directions…
If, however, building material or additional works that were not part of the remuneration…
Thus, an unjustified enrichment on part of the employer is avoided. On the other…
Beyond the mere duty to utter concerns, which only helps the employer in the case…
Since the contractor is liable for achieving the result as agreed in the contract,…
Remedies
If any work contracted for is produced not in conformity with the contract, Sec. 634…
Independent of negligence or fault, the employer may claim cure which may either…
Under the same conditions, i.e. still independent of fault or negligence, but including…
Contractor Obliged to Perform in Advance, Sec. 641(1) GCC
The high standard that the contractor has to live up to in order to perform his obligations…
Control Of Standard Business Terms, Secs. 305 ff. GCC
Even though the provisions in the law of obligations are only gap fillers by nature,…
While this set of rules applies universally, i.e. even in business-to-business contracts,…
Section 309 Prohibited clauses without the possibility of evaluation…
Even to the extent that a deviation from the statutory provisions is permissible,…
……
8. (Other exclusions of liability for breaches of duty)…
…Sayfa 260…
b) (Defects) a provision by which in contracts relating to the supply of newly produced…
aa) (Exclusion and referral to third parties) the claims against the user due to…
bb) (Limitation to cure) the claims against the user are limited in whole or in regard…
cc) (Expenses for cure) the duty of the user to bear the expenses necessary for the…
dd) (Withholding cure) the user makes cure dependent upon prior payment of the entire…
It is noteworthy that the courts interpret the term “newly produced things” in contracts…
At the bottom line the qualification of constructions contracts as contracts to produce…
Consumer Credit
The particular consumer protection against over-indebtedness as a consequence of…
So, the application of the protective provisions derived from the protection against…
However, the availability of instalment payment schemes permitting the application…
Solely, in the field of single source construction of entire buildings the exchange…
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