Not only of dogmatic but also of purely practical importance is whether an overall contract or a partial contract is present and which service or services have been agreed to. Of equal importance is the legal assignment of individual architect services irrespective whether an overall contract it is dogmatically considered to be a so-called “mixed contract” (implementation of the standards from different legal contracts) or a so-called “contract sui generis” (a contract not regulated by statute).
Of essential importance is the classification of whether a service is subject to the rules of mandate law or those of work law. The architect owes differing “qualities:”
- The mandated party only owes but must nevertheless provide services with due care
- A “success” is not owed for the fulfilment of the contract
- The principal can at any time cancel the order (OR 404 paragraph 1)
- In case of an untimely dissolution of the contract, the client must compensate the mandated party for any resulting damages (OR 404 paragraph 2)
- The contractor owes a successful result for the fulfilment of the contract
- Due care – without a successful result – is insufficient
- For a contractual withdrawal in accordance with OR 377, the customer must fully compensate the contractor for any and all losses.
The legal nature and different legal consequences are presented very briefly under: