IF THE WEATHER DOESN'T COOPERATE DURING CONSTRUCTION
WEATHER-RELATED CONSTRUCTION PROCESS DISRUPT
23.10.2017
Construction schedules are usually calculated very tightly. The property developer wants to sell his apartments as soon as possible, the private house builder would rather move into his own home sooner rather than later in order to avoid the unpopular additional costs. Along the way, numerous circumstances must be taken into account, to which even the most careful planner is defenseless. As soon as the initial shock of the sudden onset of winter, flooding or never-ending rain has passed, the question arises as to what legal consequences such accidental disruptions have for the construction schedule?
In Austrian law, this question is answered according to the sphere theory. According to this, each party to the contract must bear the risk of chance that occurred in their sphere. “Chance” refers to the risk of delays in the work before acceptance, which is not the fault of either party. If one of the contracting parties is at fault, it cannot be said to be a coincidence.
The subject of this article are circumstances that originate from nobody's sphere or from the neutral sphere. Delays due to weather are unavoidable events whose occurrence cannot be prevented. The ABGB assigns the neutral sphere to the contractor. He bears the risk of the onset of winter, persistent rain, etc. However, this regulation is dispositive and can therefore be changed by agreement between the parties. Even if this must not violate common decency, clients must exercise caution during contract negotiations.
ÖNORM B 2110 provides a more differentiated regulation for these cases. This must be agreed contractually and in this case supersedes the provisions of the ABGB. According to this, foreseeable weather conditions are to be assigned to the sphere of the contractor. Exceptional and therefore unforeseeable weather conditions are to be assigned to the sphere of the client. If a definition of "exceptional" does not arise from the contract, this is to be understood as events that occur less frequently than every 10 years. This regulation is based on the idea that the contractor must take foreseeable circumstances into account, but is not required to take even unlikely natural phenomena into account in his planning.
If the ABGB is applicable, attention should be paid before concluding the contract to whether it contains any provisions that deviate from the statutory provisions.