Facts
In this case, it involved a construction contract between the ARGE A. (appellants) and D. AG (the client) for general contractor work at a lump-sum price. After completion of the work, the appellants asserted outstanding claims, which they justified by unilateral changes to the orders (Art. 84 SIA Standard 118) and special circumstances (Art. 58 para. 2 SIA Standard 118).
The Commercial Court of the Canton of Zurich dismissed these claims, as the prices for the work claimed should be determined based on the actual costs in accordance with Art. 374 CO, as the SIA Standard 118 was incomplete in this respect. The Federal Supreme Court partially overturned the decision and remanded the case for re-evaluation by the lower court.
Considerations
The Federal Supreme Court concluded that Art. 89 of the SIA Standard 118 should be applied by analogy if the parties could not agree on the additional price for unilateral changes to the orders. Accordingly, the court must determine the additional price, whereby the general market prices at the time of the change to the order are generally decisive.
The court has a margin of discretion in setting the price and must consider all relevant price elements. Determining the…