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FUNCTIONAL PERFORMANCE DESCRIPTION
06.11.2017
The contractor must produce the work without delay and without defects. The properties the work must have are to be determined by interpreting the contract. In practice, two types of performance description (SD) have been developed in this regard: With the functional SD, the work must fulfil a specific function. The type of execution is left to the contractor. With the constructive SD, the contractor must produce the work according to a type of execution specified by the client. What is actually owed is always a question of the individual case. However, the Supreme Court (OGH) has developed guidelines in its case law that the parties must in any case observe when drawing up the contract.
If a work is described in the contract in terms of both construction and functionality, the WU is responsible for the function if the interpretation of the contract shows that the type of execution was of no importance to the customer and the contractually desired result was functionality. If the WB attaches importance to a certain type of execution, this should be clearly stated in the contract to avoid difficulties in interpreting the contract.
Usually, neither the functionality nor the execution are specifically described in contracts. In these cases, the practice of fair dealing, the usually assumed properties and the recognized rules of technology must be taken into account when interpreting the contract.
This must be distinguished from the situation in which both a functional and a constructive LB exist, but the required function cannot be achieved by the agreed type of execution. This was the case in a case to be judged by the Supreme Court in which an oil and salt-resistant floor was required during the construction of a stable, whereby the various work steps to achieve this function were specifically agreed. In retrospect, it turned out that only a different, more expensive design would have been necessary to achieve the required function. On the question of who should bear the costs for this more expensive design, the Supreme Court stated that these should be borne by the WU if a certain functionality was agreed at a flat rate. If the contract is not based on a flat rate, there is a risk for the WB that it will have to bear these additional costs itself. However, in order to assess whether this is the case in an individual case, a large number of complex legal questions arise, which must be examined on a case-by-case basis and cannot be answered in general.