"Waiting for the customer": Obligations to cooperate and performance obligations of the customer in IT law.
This blog is about the customer's default of acceptance and the resulting issues.
The term "default of acceptance" means that the IT company could provide (and invoice) its services if the customer had provided its services correctly and on time. Or additional expenses are incurred because the customer does not provide the required services.
Case 1: As part of a contract for work and services, A (customer) and X (IT company) have agreed that A must perform certain actions at a certain time or that he must provide certain information at a certain time. If A does not fulfill its obligations, X cannot provide its services. X cannot serve other customers because A does not cooperate. He has many other customers that he could serve. Question now: Can the X demand compensation from the A (sic. only fixed costs) or also damages (sic. including profit)?
Case 2: Software is leased. The contract states in the section "Obligations to cooperate" that the customer must provide a specific system environment. He does not do this, the software does not work well and keeps crashing. A reports defects, X establishes with some effort that the software works in the correct system environment.
Case 3: Like case 2: The parameters for the system environment change repeatedly over time. The customer has set the system environment as agreed at the beginning of the contract. The contract does not state that the customer must keep updating the system environment.
Case 4: As part of a project based on service contract law, X and A have agreed that X's services must be provided within a certain period of time. However, A still has to give X precise instructions as to what is to be done. He does not do this. The contract states that A only has to pay for the hours actually worked, but not for the times when X's employees are waiting for A's instructions.
Basic structure of the BGB
The relevant part of the standards for solving these cases is derived from the law of obligations, namely the general and special parts. There are special standards in the law on contracts for work and services in §§ 642, 643, in the law on contracts for services in §§ 615, 616. The general regulations are derived from §§ 293 ff BGB.
1) Law on contracts for work and services.
a.) Section 642 BGB states that the IT company (supplier) is entitled to compensation if the customer's action is required for the production of a work and the customer does not fulfill the obligation to cooperate or does so too late. This compensation does not include the loss of profit, unlike the compensation for damages (correctly from § 281 BGB).
b.) Required cooperation, documentation and duty to provide information
(aa) The only requirement is actually that the customer's action is "necessary", which is usually easy to prove. According to the wording of the law, it is not decisive whether the obligation to cooperate has been contractually agreed. However, I do not consider this to be practical. The customer often does not know which factual conditions must be created so that the IT company can provide its service. At this point, the legal literature gets lost in considerations as to whether the duty to cooperate is obviously or not obviously necessary and whether the IT company has breached a duty of disclosure if the act of cooperation was not completely obvious.
bb.) For practical reasons, the customer should always be told when which obligation to cooperate is to be fulfilled. And, of course, "non-obvious obligations to cooperate" must be documented in detail. Statements such as "the customer must contribute to the success of the project" or "the customer must provide the necessary interfaces" will not suffice. If the customer is late in fulfilling an obligation to cooperate, they will always try to exculpate themselves by claiming that the obligation to cooperate was not described clearly enough and its content was not sufficiently clear, etc. Such problems can be avoided. Such problems can be avoided.
cc.) It is not necessary for all duties to cooperate to be clearly described at the time the contract is concluded. Obligations to cooperate can also be defined later in a project. They also do not have to be agreed - even if this is certainly the better way in individual cases. The customer must certainly have been informed of the scope of the resources that he will have to use during the course of the project when the contract was concluded. Examples: The customer has to invest a lot of manpower in order to draw up the specifications. The customer must provide a special IT infrastructure or special software in order for the project to be successful. - If the customer has not been informed about such necessary acts of cooperation, he can defend himself against their fulfillment with the objection that he has not been sufficiently informed. In the worst case scenario, the customer can terminate the project and go into reverse transaction.
c.) Obligations.
There is a decision of the BGH from 2008 (B 27.11.2008 NJW 2009, 586), which states that obligations to cooperate must be observed. Obligations are duties whose fulfillment is solely in the interest of the respective customer. For example, if you report a claim to your insurance company too late, this is considered a breach of obligation. As a result, the insurance company may refuse to provide cover in this case. Obligations do not constitute an obligation to pay benefits and therefore no compensation can be derived from the breach of an obligation. In any case, you should not accept that the customer qualifies the fulfillment of obligations to cooperate as an obligation. In such cases, you would not be able to claim full compensation. I consider the BGH's decision to be fundamentally wrong and would also advise every client to take legal action against it if the worst comes to the worst. The agreement of the duty to cooperate as an obligation would enable the customer to get out of the project "cheaply" by not fulfilling certain duties to cooperate. In such cases, the IT company could only demand compensation. Neither the wording nor the system (§§ 642 et seq. are a special case of § 293 et seq. of the German Civil Code) provide a reasonable justification for regarding duties to cooperate as an obligation. If the legislator assumes that an obligation exists, this is expressly stated in the legal texts. However, the term does not appear in § 642 BGB.
The system does not explain why, on the one hand, the contractor does not have to work with a deadline and threat of refusal (as in §§ 280ff) in order to obtain compensation, but, on the other hand, should no longer receive compensation. The reasoning is not valid. Be that as it may: make sure that the duties to cooperate are not obligations.
bb.) Primary or secondary obligations
This decision of the Federal Court of Justice led to the desire of contractors to turn the duty to cooperate into a primary obligation and not to leave it at the level of a secondary obligation. As already mentioned, it is important not to allow duties to cooperate to become obligations, as this would invalidate the claim for damages. However, it is not necessary to differentiate between primary and secondary obligations. Ancillary obligations include, in particular, safeguarding the customer's interest in integrity (his databases must continue to function), but also performance-related obligations that serve to implement and create the conditions for the fulfillment of the main contract (Palandt § 241 para. 5).
To avoid any disputes, I write in my contracts that the customer must fulfill the following obligations in order for the contract to be fulfilled. This makes it clear that these services are not obligations.
