Are contract promises

Technical literature, comments and manuals VgV / UVgO commentary UVgO - procedural rules for the award of public supply and service contracts below the EU thresholds Section 2 Award procedure Subsection 3 Preparation of the award procedure Section 21 UVgO tender documents D. Contractual penalties (Paragraph 3)

Malte Müller-Wrede
Michael Pilarski / Robin Bonsack
IV. Differentiation from similar legal institutions
Instead of agreeing a contractual penalty, the creditor of a performance can also use other means of security. These include the lump-sum compensation, the independent promise of punishment, an expiry or forfeiture clause, the forfeit money and the guarantee promise.
In contrast to the contractual penalty, the lump sum for damages assumes that the damage actually occurred.1 As a result, in the case of public structures that are not used commercially, it would be difficult to justify an obligation to compensate for lost benefits.
Compared to the contractual penalty, an independent promise of punishment lacks a contractually agreed main service to be secured. In the absence of the main liability to be secured, the security means are only of subordinate importance in accordance with Section 343 (2) BGB
An expiry or forfeiture clause has the effect that in the event of non-performance or improper performance, certain claims expire or the debtor loses them. While the contractual penalty directly creates an additional claim on the part of the obligee, a forfeiture or forfeiture clause reduces the claims on the part of the debtor. In this respect, the two means of security can be described as the respective mirror image from a legal point of view
The payment of forfeit money is linked to the withdrawal from the contractual relationship. In contrast to the contractual penalty, the creation of a claim presupposes the continued existence of the main liability and the withdrawal from the contract.
The guarantee promise is characterized by the fact that the debtor promises a certain performance as the primary performance promise in the event that a certain success or a certain event occurs or does not occur

1 Cf. Karlsruhe Higher Regional Court, judgment v. 7/31/2013 - 6 U 51 / 12.2 Langen, in: Kapellmann / Messerschmidt, VOB, § 11 VOB / B marginal number 6.3 cf. Higher Regional Court Brandenburg, judgment v. November 6, 2009 - 12 W 37/09, BauR 2010, 261 - 262.4 BGH, judgment v. June 23, 1988 - VII ZR 117/87, NJW 1988, 2536.