In construction law, especially in the area of plant construction, the general contractor regularly commissioned assumes very considerable risks. A charming way for them to limit these risks can be to pass on contracts or individual relevant contractual terms to their subcontractors.

In this case, the general contractor agrees with each of its subcontractors that all obligations arising from the general contractor agreement (main contract), insofar as they relate to the subcontractor’s work, will be “passed on” to the subcontractor. The general contractor thus passes on the relevant obligations 1:1 to its subcontractors.

The following article deals with the legal framework conditions of such a contract construction by means of the interposition of contracts, in particular with the question of the extent to which there could be concerns about the effectiveness of such a construction.

Fundamental permissibility of such a contractual arrangement

Contracts with subcontractors (subcontractor contracts) are generally independent construction contracts from which the rights and obligations arise independently of the main contract (Junghenn, Beck VOB-Kommentar, Part B, 3rd edition 2013, para. 24).

The transfer of the general contractor’s obligations towards the client arising from the main contract to subcontractors is, in principle, a legally possible contractual constellation that is used in practice:

This possibility arises, for example, from the VOB/B, regulated in § 4 para. 8: According to this, the contractor must provide the service in his own company, but he can also commission subcontractors without the consent of the client if the specific service does not fall within his area of expertise.

The latter is probably the rule, especially in plant construction. It is rare for a general contractor to have all of the necessary specialist skills for the construction of complex plants.

It is also a recognized option for the general contractor to outsource its work services in their entirety to subcontractors (Junghenn, Beck VOB-Kommentar, Teil B, 3rd edition 2013, para. 8). The general contractor then assumes a kind of intermediary function (Klaus Ramming: Überlegungen zur Ausgestaltung von Nachunternehmerverträgen durch AGB, BB 1994, Heft 8, 518).

Irrespective of this, the contractor and subcontractors can agree on provisions in the subcontractor contract that are identical in content and run in parallel to those found in the legally independent main contract between the contractor and its client; the contractor (often as a general contractor), which sits “between the two chairs” of client and subcontractor, inevitably has a justified interest in the parallel connection (synchronicity) of important provisions of the general contractor contract on the one hand and the subcontractor contract on the other (Junghenn, Beck VOB-Kommentar, Teil B, 3. Edition 2013, para. 24).

Finally, it is also legally possible to pass through provisions of the main contract by simple reference (Richter in Messerschmidt/Voit, Privates Baurecht, 2nd edition 2012, para. 238). This applies in any case to the synchronization of performance obligations (Kimmich/Bach VOB für Bauleiter, 6th edition 2014, para. 408).

Ineffectiveness in individual cases after GTC review

The only remaining problem in this context could be that the reference to the provisions of the main contract could lead to the application of GTC law in the respective individual case and thus to the possible invalidity of individual clauses.

If the inclusion of the provisions of the main contract in the subcontractor contract has not been negotiated, the law on general terms and conditions is likely to apply as a rule.

An ineffectiveness under GTC law can be considered, for example, when clauses on limitation periods, extraordinary termination rights and due dates are passed on (cf. compilation by Richter in Messerschmidt/Voit, Privates Baurecht, 2nd edition 2012, para. 240- 246).

Important: The provision of performance obligations is unobjectionable under GTC law!

However, with regard to the probably most important and at the same time most liable clause, namely the passing on of performance obligations, there are generally no concerns about effectiveness.

The reference to the main contract regarding the performance obligations should not constitute a GTC provision. In addition, such a reference should also be unobjectionable under GTC law.

The performance obligations regulated in the main contract do not generally constitute GTCs themselves, as these are always agreed individually between the client and the general contractor. This individual agreement also does not become GTC if it is agreed with several subcontractors by reference.

In any case, a review of the general terms and conditions with regard to the scope of services only takes place to a limited extent. It is limited to a pure transparency check, a content check does not take place.