(1) The contractor may demand a security from the customer for the remuneration also agreed in additional commissions and not yet paid, including associated incidental claims, which are to be estimated at 10 per cent of the claim to remuneration that is to be secured. Sentence 1 also applies in the same scope to claims replacing the remuneration. The claim of the contractor for a security is not ruled out by the customer being able to demand performance or of their having accepted the work. Claims with which the customer is able to set off against the contractor’s claim to remuneration are not taken into account in calculating the remuneration unless they are uncontested or have been finally and bindingly established. The security is to be deemed sufficient even if its provider reserves the right to withdraw their promise in case of a substantial deterioration of the financial circumstances of the customer, with effect for claims to remuneration for building work that the contractor has not yet performed when the declaration of revocation is received.
(2) The security also may be provided by means of a guarantee or other promise of payment by a banking institution or credit insurer authorised to operate its business within the territorial extent of this Code. The banking institution or credit insurer may only make payments to the contractor to the extent that the customer recognises the contractor’s claim to remuneration or has been ordered by a provisionally enforceable judgment to pay the remuneration and the prerequisites are met based on which compulsory enforcement may be commenced.
(3) The contractor is to pay to the customer the costs customarily entailed by the provision of security up to a maximum amount of two per cent per year. This does not apply insofar as a security must be maintained because of objections raised by the customer to the contractor’s claim to remuneration and the objections prove to be unfounded.
(4) Insofar as the contractor has obtained a security for their claim to remuneration under subsection (1) or (2), the claim to be granted a mortgage under section 650e is excluded.
(5) If the contractor has set the customer a reasonable time limit to provide the security in accordance with subsection (1) and this has expired without result, the contractor may refuse to carry out the work or may terminate the contract. If the contractor terminates the contract, then they are entitled to claim the agreed remuneration; however, the contractor must allow to be credited against them what they save due to the contract being cancelled or what they acquire or wilfully fail to acquire from other use of their labour. The presumption is that on that basis, the contractor is entitled to five per cent of the remuneration accounted for by the part of the work not yet performed.
(6) Subsections (1) to (5) are not to be applied if the customer is
1. a legal person under public law or a special fund under public law with regard to the assets of which insolvency proceedings are not permissible, or
2. a consumer and the matter concerns a construction contract with a consumer pursuant to section 650i or a developer contract pursuant to section 650u.
No. 2 of sentence 1 does not apply if the construction project is managed by a construction agent authorised to dispose over the financial resources of the customer.
(7) Any agreement deviating from subsections (1) to (5) is ineffective.