I.
Legal practitioners get increasingly confronted by a clash of civilisations when trying to cover new media and business innovations with their traditional legal set of tools : The time-honoured BGB (German Civil Code) – though amended repeatedly – dates back in its structures to the year 1900 and an era, when telephones were young innovations and not smart, aviation was still to start its career and German Emperor Wilhelm II had 18 years to reign ahead.
II.
Schulte Riesenkampff recently achieved to successfully clear a complicated legal issue in court – programming an interactive website by so-called SCRUM. This is a method of agile programming, which is characterized not by a fully drafted and worded description of work, but by which the principal and the contract partner who is to program the website define parts of the works cooperatively and fix these findings in so-called sprints. Based on the previous sprint, the next phase is defined and fixed in the following sprint subsequently – until the product is completed. The programming method is new and the legal handling is lively discussed in the community.
Particularly of interest was the type of contract under BGB which is addressed by such cooperation: A services contract (Dienstvertrag) is advantageous for the programmer as there is no set of warranties for such contract in BGB and the rendering of services is object of the contract – whereas a works contract (Werkvertrag) is advantageous for the principal as it requires a formal acceptance of a work completed and handed to the principal and provides for a catalogue of defined warranties and their consequences. It also might be a “blended contract” containing elements of both of the aforementioned.
III.
The litigation team of Schulte Riesenkampff headed by Christoph Just managed to convince the Regional Court of Wiesbaden, that SCRUM-based contracts as the complex programming of a an interactive website fall solely under the rules of works contracts (judgement of Dec. 1, 2016). As the cooperation failed before the platform had been completed, this saved the client to pay a huge consideration. The judgement was so important for the community that it was published in several legal journals, e.g. ITRB (IT Rechtsberater – IT legal counsel). Being a landmark case, it is appealed.
