The principal’s right of retention presents itself under due claims in the following four cases:
- agreed instalment payments
- outstanding documentation or guarantee work
- refusal of the architect (planner) to account for something
- refusal of the architect (planner) to issue or hand over items he has received or that were purchased for his use
The right of retention is limited by good faith and with relation to the conduct of principals, contractors and third parties:
- No right of retention for contractors – contributory negligence of the builder reserved when he refuses:
- Denial to rework or repair
- Delay in reworking or repairing
- Hidden defects (at the final guarantee inspection)
- cf. also OR 82
- The principal may only withhold as much as is necessary in order to have “enough” to ensure that the contractor performs and to this end exert “sufficient” pressure.
Retention in case of a premature contract cancellation
The right of retention under OR 82 can also be similarly applied even though the contract continues to be in force, however, not for fulfilment but rather for liquidation reasons:
Exchange of services after contract cancellation
- Deletion of the pre-performance obligation of the architect (planner)
- Step-by-step performance by both sides simultaneously
- No claim to the issuing of documents and drawing copies without a compensation payment
- Architect (planner) may not demand the payment of fees from the principal without rendering compensatory services
- Fees and issuing are in a direct exchange relationship
- Reduction and offsetting rights
- The principal’s right of reduction because of poor fulfilment and offsetting under the conditions of OR 120 ff.
- In the event the compensation obligation of the principal is reduced to zero through offsetting, the architect’s (planner’s) objection possibility is cancelled since his handover obligation is no longer paired with a fee obligation.