Can Technical Building Equipment (TGA) services without written contract be billable? What does the court say?

In a recent judgment from the OLG Celle dated August 2, 2023 (Ref. 14 U 200/19), the issue was whether an architect can demand compensation for technical building equipment services (TGA services) without a written contract.

Core of the debate: Should the builder pay for TGA services if they have been utilized but not formally contracted?

The Case: An architect was commissioned to renovate and modernize a single-family home. Upon completion of the works, the architect sought additional fees for TGA services he claimed were commissioned by the builder. However, the builder disputed this, arguing he did not intend a contract for these specific services.

Court’s Decision: The OLG Celle sided with the architect. The court found that the extensive communication (approximately 270 emails) between the architect and the builder indicates that the builder was actively involved in the TGA planning. This suggests he wanted these services and accepted the associated payment obligation.

The court also stressed that the builder’s assumption that these services were included in the original building plan was not relevant. Under § 632 Abs. 1 BGB, a fee would be tacitly agreed if the creation of the work is only to be expected against payment. This was also indicated by the architect’s presented cost breakdown, which noted planner costs for the TGA.

Important Note: The court emphasized that the builder, being a board member of an international public company, cannot be regarded as inexperienced in business and is likely skilled in reading cost breakdowns.

Conclusion: Making use of and utilizing services can be seen as tacit consent to a contract and the associated payment obligation. It’s always advisable for parties to have written agreements to avoid such disputes.