BGH: Contractual penalty clause with reference to net order amount in unit price contract is invalid!

BGH, judgment of February 15, 2024 - VII ZR 42/22 

The BGH has once again ruled that a contractual penalty clause designed as a general terms and conditions clause is invalid. This concerns provisions in unit price contracts that link the contractual penalty to the net order amount. The BGH considers this to be an unreasonable disadvantage for the contractor, cf. 307 para. 1 sentence 1 BGB. A contractual penalty should be reasonable in relation to the actual remuneration earned.

According to established case law, an unreasonable disadvantage is assumed if the contractual penalty can exceed a maximum limit of 5% of the invoiced amount. In the case of a unit price contract, there are various reasons why the sum actually invoiced after measurement may deviate downwards from the original contract sum. For example, the contractual penalty may significantly exceed the maximum limit of 5% of the settlement sum if it is linked to the original (sometimes significantly higher) order sum. The clause does not contain any compensation to offset this difference in favor of the contractor, meaning that the entire contractual penalty clause unreasonably disadvantages the contractor and is therefore invalid. The consequence of this is that the client cannot offset a contractual penalty after completion of the construction project, but must take the complicated and rocky path of providing concrete evidence of damages.

Michael Ch. Bschorr
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Mediator, arbitrator
according to the SO-Bau of the DAV
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