Definition and legal classification of the term ‘Besteller’ (Ordering Party)
The term Besteller holds a central position in German law and is used in various contexts, particularly in contract law under the German Civil Code (BGB). The term generally refers to the party who places an order at the conclusion of a contract, i.e., requests a service, good, or service. The legal position of the Besteller varies depending on the type of contract in which it is mentioned. Legally, the Besteller is defined differently and equipped with various rights and obligations in, for example, contract law for works, service contracts, and in public procurement.
The Besteller in contract law for works
Term and legal position of the Besteller in a contract for work and services
In the law governing contracts for work and services, particularly regulated in §§ 631 ff. BGB, the Besteller is the person who commissions a contractor with the manufacture of a specific work. This may involve the construction of a building, the repair of an item, the creation of a work of art, or any other manufacture or modification of an object or result.
According to § 631 para. 1 BGB, the contractor undertakes to produce the promised work, while the Besteller is obliged to pay the agreed remuneration. Here, the Besteller occupies a role comparable to that of a buyer in a sales contract, although special rules apply to contracts for work and services.
Rights of the Besteller
Within the framework of the contract for work and services, the Besteller is entitled, among other things, to the following rights:
- Right to defect-free performance
The Besteller is entitled to have the work free from material and legal defects (§ 633 BGB).
- Right of acceptance
The acceptance of the work (§ 640 BGB) constitutes a legally significant step. It is only upon acceptance that remuneration is normally due and the risk of accidental loss passes to the Besteller.
- Rights in case of defects
In the event of defective performance, the Besteller is entitled to statutory warranty rights, including the right to subsequent performance (§ 635 BGB), reduction, self-performance, and damages (§§ 634 ff. BGB).
- Right of termination
The Besteller may terminate the contract for work and services at any time prior to completion of the work in accordance with § 649 BGB, but must then pay the agreed remuneration minus saved expenses.
Obligations of the Besteller
In return for asserting and protecting his rights, the Besteller has various obligations:
- Obligation of payment
The Besteller must pay the agreed remuneration after acceptance of the work (§ 641 BGB).
- Cooperation obligations
Where necessary, the Besteller is obliged to contribute to the proper execution of the work, for example by providing information or materials (§ 642 BGB).
- Obligation of acceptance
The Besteller must accept the work, provided it has been produced in accordance with the contract (§ 640 BGB).
The Besteller in service contract law
In the law governing service contracts, represented by §§ 611 ff. BGB, which regulates the provision of services for payment, the term Besteller is less frequently used. Here, the Besteller corresponds to the contractual partner receiving the service. The rights and obligations are similar to those in the law governing contracts for work and services, but the obligation of a successful outcome as the main duty of the service provider is absent.
The Besteller in public procurement
Role in public procurement law
In public procurement, the Besteller typically denotes the client who publicly advertises and awards supplies, services, or construction contracts. Within the meaning of procurement law, Besteller primarily refers to public authorities, corporations, or institutions that award contracts to companies.
This role is linked to a multitude of statutory regulations by the Act against Restraints of Competition (GWB), the Public Procurement Regulation (VgV), as well as various special provisions, such as the Construction Contract Procedures (VOB). In this context, the Besteller, in particular, is required to conduct the procurement procedure transparently, without discrimination, and considering cost-effectiveness and efficiency.
Distinction from other terms in contract law
Difference from buyer or client
Although the term Besteller is often used synonymously with buyer or client, there are legally relevant differences:
- Buyer in sales law is the party who acquires an item in exchange for payment of a purchase price (§ 433 BGB).
- Client is the party who commissions services (e.g., within the scope of an agency agreement, § 675 BGB).
- Besteller represents a generic term, used especially in contract law for works, and may also be understood as a client.
Special features and forms
Consumer protection for the Besteller
If the Besteller is a natural person who commissions a work for private purposes, consumer protection law applies. In this context, the Besteller has additional rights, such as a right of withdrawal in the case of contracts concluded outside business premises (§§ 355, 356 BGB).
Besteller in international law
In international civil law, the term Besteller may be differentiated using various terms, whereby the exact legal position must always be examined under the respective national contract law.
Summary assessment
The Besteller is a central contractual party in German civil law, especially in contract law for works, and plays a significant role at the time of contract formation. Legally, the position of the Besteller is defined by numerous rights and obligations, serving both the protection of the party and the execution of balanced contractual relationships. Precise classification and distinction from similar legal terms is essential for contract drafting and the enforcement of claims in civil law.
Frequently Asked Questions
Who is responsible, in legal terms, for selecting the contractual partner on behalf of the Besteller?
In principle, the Besteller is responsible for selecting the contractual partner in a legal context. For example, if the Besteller chooses a contractor or service provider, he is obliged, within the scope of his duties of care and at his own discretion, to examine the contractual partner’s creditworthiness, reliability, and suitability. If performance issues arise later on, such as defects in execution or delayed delivery, the Besteller will generally not be able to claim that he selected an unsuitable contractual partner—unless the partner was prescribed by mandatory statutory provisions or by a third party, such as a public client. In connection with public procurement procedures, there are special examination and selection criteria that the Besteller must observe. In the private sector, the Besteller has free choice, but should always thoroughly weigh economic, legal, and technical risks based on the available information.
To what extent does the Besteller have specific information and notification obligations toward the contractor or service provider?
The Besteller is obliged under applicable law to inform the contractor of all information necessary for contract execution. This specifically includes information relevant to the proper delivery of the service, such as special requirements for the work to be created, site conditions, technical requirements, or differing ideas about how the work should be performed. If the Besteller breaches this obligation, this may result in him being held liable for additional costs, delays, or even failures. A breach of the duty to provide information can also restrict the Besteller’s warranty rights, for example if contributory negligence is imputed under § 254 BGB.
What legal rights does the Besteller have in the event of defective performance?
In the event of defective performance, the Besteller has extensive rights, which are generally based on the law governing the particular type of contract. If it is a contract for work and services, as is often the case in the construction or trades sector, the Besteller can demand subsequent performance (remedy of defects or new production), reduction of the contract price, withdrawal from the contract, or damages (§§ 634, 636ff. BGB). The specific rights and prerequisites depend on the type of defect, the contractual agreements, and any deadlines set. In the law governing service contracts, there are generally no warranty claims, only claims for professional and contractual performance. Here, however, rights of withdrawal and termination exist if the service is not provided or not provided properly.
Can the Besteller unilaterally terminate or withdraw from the contract from a legal perspective?
The Besteller expressly has the right to freely terminate the contract at any time and without giving reasons up until completion of the work in contracts for work and services, the so-called ‘right of termination for good cause’ (§ 649 BGB, since 2022 § 648 BGB). In the event of such termination, the Besteller must pay the contractor the agreed remuneration minus the contractor’s saved expenses. For service contracts, a similar right of termination exists under § 621 BGB, although notice periods may have to be observed. Distinct from this is the right of withdrawal, which applies only to certain types of contracts, for example in the case of distance selling contracts or contracts concluded outside business premises under §§ 355, 312g BGB. The prerequisite for this is generally that the Besteller is a consumer and the contract has been concluded with a business.
How does the liability of the Besteller arise, particularly with regard to duties of protection and cooperation?
The Besteller is particularly liable if he violates duties of protection or cooperation arising from the law or individual agreements. Typical duties of protection include, for example, creating a safe working environment, providing documents, land, or materials on time, and enabling access or cooperation with third parties. If the Besteller fails to meet his obligations and the contractor suffers a loss as a result, the latter can claim damages for breach of duty (§ 280 BGB). The Besteller may also have his entitlement as a claimant limited on the basis of § 254 BGB (contributory negligence) if he was partly responsible for the occurrence of the damage.
What are the legal peculiarities for Besteller in the context of public contracts?
Besteller in public procurement procedures are subject to numerous public and civil law requirements. These include the principles of transparency, equal treatment, non-discrimination, and cost-effectiveness. The selection and commissioning of contracting partners are subject to stricter verification and documentation obligations, especially under procurement law (GWB, VgV, UVgO). Errors in the procurement procedure can have legal consequences, such as review proceedings initiated by other bidders or, in the worst case, annulment of the contract by the procurement chamber or the competent court. In addition, there may be approval, reporting, or licensing obligations depending on budget law and the type of public Besteller.
Are there options for the Besteller to contractually exclude certain risks?
The Besteller can attempt to minimize his liability and risks contractually through appropriate provisions. This is often done by means of exclusion or limitation clauses for certain damages, liability caps, or the transfer of specific risks to the contractual partner, provided this is legally permissible. However, such provisions are subject to review under the German law on general terms and conditions (§§ 305 ff. BGB), and may not, in particular, lead to an unreasonable disadvantage for consumers. Certain breaches of duty, e.g., in the event of injury to life, body, or health, or in cases of intent or gross negligence, cannot be contractually excluded to the detriment of the Besteller (§ 309 No. 7 BGB). In international contracts, the applicable law must also be observed, which may provide for different regulations.
