Full service
August 11, 2009 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Fullservice:
We have completed a full-service with a customer in 02/07. We have noticed that the costs are running away from us and have informed the customer about it. The customer is not willing for us to make improvements. Since the price quoted was only theoretical and now in practice, different standards are being set, we need to adjust the price. The term still has 1.5 years remaining. After examination, we have found that we are paying 30,000 euros per year out of our own pocket. Please let us know if we can adjust the price or refuse the service altogether.
Dear seeker of advice,
Thank you for your inquiry!
Below, I would like to address your questions in consideration of the details you provided and your commitment:
Unfortunately, you did not specify in which area you signed the contract or under what exact conditions. Based on your description, I assume that you have contractually agreed to a binding price to which you are unfortunately bound.
The law unfortunately only provides very narrow conditions for retracting from a contract.
One possibility is to challenge the contract due to fraudulent deception or threat according to § 138 of the German Civil Code, which, based on your description, does not seem to apply. Another option is to challenge the contract due to a mistake in declaration according to § 119 of the German Civil Code, which also does not seem to apply in your case, as it is not evident that you made a mistake in expressing yourself and did not intend to communicate what is stated in the contract.
In other words, you intended to set the price as binding at that time.
Unfortunately, you miscalculated, which falls within your own risk and does not generally entitle you to challenge the contract.
An exception would only arise if the other contracting party recognized the calculation error (if this can even be called as such in this case) BEFORE the contract was concluded and did not inform you about it. However, even if this were the case, it would be extremely difficult to prove in practice.
If the price structure has indeed changed significantly after the conclusion of the contract, an adjustment to the contract might be considered under the principle of disruption of the basis of the transaction according to § 313 of the German Civil Code. According to this provision, a contract adjustment can be requested if circumstances that have become the basis of the contract have changed significantly after the contract was concluded, and the parties would not have entered into the contract or would have done so with different content if they had foreseen this change, to the extent that it would not be reasonable for one party to adhere to the unchanged contract in consideration of all circumstances of the individual case, in particular the contractual or legal risk allocation.
Without knowing all the details of your case, it is unfortunately not possible to provide a final answer in this initial consultation, as the industry and exact price developments are not known. Therefore, it is advisable to engage a local colleague to review the complete situation and make a final statement, and if necessary, to contact the other party. Before doing so, you could also try to request a contract adjustment under reference to § 313 of the German Civil Code.
In conclusion, I would like to point out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only a preliminary legal assessment of the situation and cannot replace a comprehensive review of the circumstances. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful. Please feel free to contact me via email or the option for further inquiries.
I wish you a pleasant Tuesday afternoon!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
