Claims based on disruptions to the construction period may become time‑barred earlier than many assume.
Contractor’s claims under section 642 of the German Civil Code (BGB) are frequently asserted in practice together with the final account. From the contractor’s perspective this is understandable, but it may be risky. It is by no means conclusively settled whether the claim for compensation only comes into existence for limitation purposes and becomes due upon acceptance of the works and submission of a verifiable final account. Although this view is advocated in the legal literature and is in part justified by the remuneration‑like nature of the claim, the opposing view regards section 642 BGB as establishing an independent claim sui generis. According to this, the claim arises for limitation purposes as soon as the employer falls into default of acceptance, i.e. already at the point in time when the contractor is unable to perform its works due to the employer’s failure to cooperate.
For the running of the limitation period, this means:
If the requirements of section 642 BGB were already fulfilled in 2023 and the contractor was aware of the relevant circumstances, the regular limitation period may have commenced upon expiry of 31 December 2023. In that case, limitation would threaten upon expiry of 31 December 2026 – irrespective of whether the works have already been accepted and whether a final account has been issued. In such cases, action may be required before the end of the year.
Cases in which the continuous default of acceptance extends beyond the turn of the year are of particular interest. It remains unresolved whether, under the principles of “unity of damage”, the entire compensation claim is then subject to a single limitation period, or whether the coming into existence of the claim for limitation purposes is rather to be considered in segments, i.e. anew day by day. If one follows this latter approach, then in the above example claims could at least partially still be preserved even after 31 December 2026, to the extent they are based on a default of acceptance by the employer that occurred (also) in 2024 or continued into that year.
For practical purposes, the message is clear: claims under section 642 BGB should not be left dormant without careful consideration and in reliance on the “more lenient” view regarding limitation. Anyone wishing to pursue construction period disruptions dating back to 2023 should actively examine the limitation situation now and initiate measures to suspend or interrupt limitation in due time.
