The client accepted the work, as documented in a written report. The contractor then submitted a final invoice demanding the remaining payment. (Photo: © Andriy Popov/123RF.com)
Read aloud:
Payment is due even if the invoice has not been internally approved by the client. The Federal Court of Justice has upheld a ruling by the Higher Regional Court of Schleswig, strengthening the position of construction companies.
A clause in a construction contract stipulating that the payment period only begins once the architect approves the invoice is invalid . Furthermore, if the client has an architect negotiate the construction contracts, they must accept responsibility for the architect's actions.
Another issue is that architects are not allowed to conduct legal negotiations at all : This constitutes a prohibited legal service under Section 3 of the Legal Services Act (RDG) . Contract drafting is the responsibility of a lawyer. However, this point was not at issue in the trial.
The client commissioned the contractor to build a residential building under a German Civil Code (BGB) construction contract. An architect prepared and negotiated the contract. The contract stipulated that the payment period for interim and final invoices would only begin once the architect had approved the invoice . Additionally, the contractor was to submit the final invoice within 30 days of acceptance and provide a warranty bond.
The client accepted the work, which was documented in a written report . The contractor then submitted a final invoice demanding the remaining payment.
Operations management
Operations management
Operations management
The client refused, arguing that the claim was not yet due because not all the conditions of the contract had been met. He also wanted to withhold payment because the contractor had not provided the required security deposit. The contractor then took the matter to court.
The Higher Regional Court of Schleswig ruled in favor of the construction company: the payment for the work is due. The Federal Court of Justice upheld the decision: the clauses in the contract do not prevent payment from becoming due because they are invalid standard terms and conditions.
The fact that the architect drafted the contract does not help the client; he must accept responsibility for the architect's actions . The court ruled that the architect acted as his agent for finalizing the contract. It is sufficient that the architect drafted the construction contract with the client's consent, negotiated with the contractor, and presented the contract for signature, the court stated.
Therefore, the statutory rules apply: The client raised no objections to the verifiability of the final invoice within the 30-day period stipulated in Section 650g Paragraph 4 Sentence 3 of the German Civil Code (BGB) . Therefore, the due date depends solely on acceptance , which the client has here declared.
The right of retention due to the promised but not provided warranty bond also does not apply, because according to the ruling, this clause also constitutes an ineffective standard business term.
"Whoever relinquishes control over contract drafting ultimately bears the consequences," comments lawyer Thomas Ryll . "If an architect or other negotiating assistant prepares the contract for one party, that party cannot later simply claim that they did not draft the clauses themselves or did not know exactly how often the other party intended to use them."
Federal Court of Justice, decision of February 25, 2026, file no. VII ZR 146/24: Appeal against the refusal of leave to appeal dismissed against the judgment of the Higher Regional Court of Schleswig, of August 21, 2024, file no. 12 U 29/23 , which is therefore final.
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