Approximate price in a total contractor agreement: burden of proof and substantiation in a claim for remuneration on a time-and-materials basis

Facts

The plaintiff ([A.] , deceased 2022; the heir is the [B.] Foundation as appellant) acquired two listed buildings in London in 1995 through a company. She commissioned the defendant Cccc[. AG] (respondent) with the restoration.

On 11 November 2002 the defendant presented the project 'Quo Vadis?' with a minimal variant at CHF 3.5 million and a complete renovation at CHF 10-14 million; the plaintiff chose the complete renovation. On 3 January 2003 the parties concluded a total contractor agreement (TUV), which declared the SIA standard 118 applicable. The costs were estimated at CHF 10-14 million (item 4.1 TUV), and a global price of CHF 2.2 million was agreed for survey, planning and project preparation as well as exploratory works (item 4.3 TUV).

During the execution, several project presentations took place. The plaintiff asserted a global price of CHF 19 million, while the defendant billed on the basis of actual effort. In the proceedings the plaintiff acknowledged a global price of CHF 19 million and CHF 475'157.-- for additional orders, totalling CHF 19'475'157.--, and paid CHF 28'475'157.--. After the final statement of account of 26 April 2005 for CHF 39'545'466.55, an outstanding amount of CHF 11'070'309.55 remained.

The District Court of Maloja dismissed the plaintiff's claim for CHF 9 million and partially upheld the defendant's counterclaim. The Cantonal Court of Graubünden dismissed the plaintiff's claim on 9 November 2020 and awarded the defendant CHF 6'362'352.32 plus interest. It rejected the existence of an established global price of CHF 19 million and of a fixed price, proceeded from an approximate price of CHF 10-14 million, and settled everything exceeding this on a time-and-materials basis (Art. 374 CO). In the absence of substantiated contestation, individual claims were to be regarded as admitted.

By appeal in civil matters, the plaintiff requested the dismissal of the counterclaim or payment of CHF 8'882'399.66 to her. The Federal Supreme Court dismissed the appeal insofar as it was admissible.

Considerations

The Federal Supreme Court applies the law ex officio, but only examines complaints that have been precisely raised (Art. 106 para. 2 FSCA). For the first-instance proceedings, the cantonal CPC/GR applies, which is reviewed only for arbitrariness (Art. 404 para. 1 CPC); the appeal procedure is governed by federal law. The establishment of facts can only be corrected in case of manifest error (arbitrariness, Art. 105 para. 2 FSCA). The appellant largely disregarded the requirements of reasoning and engaged in impermissible appellate criticism; exhaustion of the instances was lacking in many respects.

In the case of lump-sum and approximate prices, the party asserting a fixed assumption or an approximate price bears the burden of proof (Art. 8 CC). In the case of limited price agreements (Art. 42 SIA 118), the burden of proving the allocation of services to the lump-sum or approximate price is imposed on the party deriving an advantage from it. The plaintiff, who complains of the overrun, must prove which services are covered by the approximate price; the respondent need only prove changes to orders insofar as the services under the approximate price in total exceed the maximum amount. The global price of CHF 19 million was not proven, so settlement on a time-and-materials basis (Art. 374 CO) is required.

Regarding substantiation: the burden of assertion is limited by Art. 8 CC and federal law requirements. The opposing party must contest, and contestations must be sufficiently specific that it is recognisable which allegations are being disputed. In construction accounts, the principal must explain in detail which items he does not accept. The plaintiff did not request further substantiation in her reply to the counterclaim, although she was evidently unable to make the allocation; her contestation therefore remained unsubstantiated. The reference to Art. 156 CPC/GR does not alter this. The interpretation of the TUV according to the principle of good faith is a question of law, but the appellant did not demonstrate the allocation of the items to the bill of quantities. The lower court sufficiently…