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Force majeure: the effective formulation of a notice of obstruction

Obstruction pursuant to § 6 VOB/B

In the case of long-term construction sites, it can often happen that the contractor is hindered in the proper execution of his performance and accordingly needs more time to be able to complete the construction project.

It may well be that the deadline for completion specified in the construction contract can no longer be met by the contractor. In order not to fall into arrears, it is possible for contractors to rely on § 6 VOB/B, among other things. Therefore, deadlines for completion can be extended if the contractor has notified the customer in writing and without delay of the impediment in accordance with Section 6 (1) sentence 1 VOB/B.

If a contractor omits to notify the customer of the impediment, the impending circumstances can only be taken into account in accordance with § 6 Para. 1 Sentence 2 VOB/B on the condition that the disruptions and consequences were obvious to the principal. If obstructions and their resulting negative temporal or financial consequences are attributable to the client, the contractor is entitled to demand both an extension of the execution deadlines in accordance with § 6 Para. 2 No.1 lit.a, and compensation for damages in accordance with § 6 Para. 6 S.1.

If the obstructions and their effects are not attributable to any of the contracting parties, then an extension of the execution periods shall also remain possible in accordance with Section 6 (2) sentence 1 lit.b, lit.c.

The possibility of extending the deadline within the meaning of Section 6 (2) sentence 1 (c) has increasingly become the subject of contractual disputes in the past year due to the impact of the Covid 19 pandemic on construction sites. In this context, the question first arose as to whether the delays caused by Corona measures were to be assessed as a case of force majeure. This was initially affirmed by the German Federal Ministry of the Interior, for Construction and Home Affairs in a decree dated 23.3.2020: “The Corona pandemic is in principle suitable to cause the facts of force majeure within the meaning of Section 6 (2) No. 1 lit. c VOB/B. The German Construction Contract Procedures Act (VOB/B) provides that force majeure is an unforeseeable event or circumstance beyond the control of the parties which can lead to a delay in the performance of the contract.

What requirements must be taken into account by the contractor in this case in order to formulate an effective obstruction notice (Behinderungsanzeige)?
According to the decree of 23.03.2020, the strict requirements of § 6 para.2 p.1 lit.c VOB/B must not be assumed as valid even in the state of emergency created by the pandemic, but must rather be examined in each individual case. Thus, the contractor who wishes to invoke force majeure must precisely explain and, if necessary, prove the circumstances justifying the reason for the impediment. The contractor’s explanations must also: “make the existence of force majeure appear predominantly probable, without all doubts having to be dispelled”. If the conditions of force majeure within the meaning of § 6 para. 2 p.1 lit.c VOB/B are present and if the Contractor has duly complied with its obligation to give notice of obstruction (pursuant to § 6 para. 1 p.1 VOB/B), this shall result in an extension of the execution deadlines by the duration of the obstruction plus an appropriate surcharge for the resumption of the work pursuant to § 6 para. 4 VOB/B.