Cooperation obligations vs. responsibilities: acts of cooperation in IT projects

Clearly define cooperation obligations in the IT project contract: This ensures the success of your project and avoids legal risks under the German Civil Code (BGB) and contract law.

In the context of IT projects, not only is the contractor required to provide certain services, but often the principal is as well. The principal's obligations, usually referred to as " acts of cooperation " (Mitwirkungsleistungen), arise either from contractual agreements or from statutory provisions. Acts of cooperation can take many forms, such as: 

• providing information, materials or data (e.g. providing information on existing IT systems, documents such as the specifications or various interface or test data);
• granting technical access to IT systems or physical access to certain premises;
• active cooperation by the principal in the project, including participating in training or providing human resources.

Acts of cooperation often pose challenges for the principal

Whether the principal engages in  acts of cooperation, is often a decisive, but underestimated, factor in the success of IT projects. This is because complex IT projects often encounter considerable challenges in practice when the principal is not cooperating sufficiently. Common problems in practice include for example: 

• IT project contracts define d acts of cooperation only in vague terms or not at all. This leads to uncertainties and time pressure if the contractor makes specific requests for cooperation during the project.
• The contractor may spontaneously request acts of cooperation that were not previously expressly agreed. This leads to unmanageable additional costs for the principal.
• The principal underestimates the acts of cooperation involved. It only realises once the project is underway that it does not have the necessary resources and capacity to undertake the acts of cooperation on time and in the required quality.

Insufficient or delayed acts of cooperation often lead to conflicts between contractual partners and jeopardise the success of the project. Principals and contractors then often blame each other. 

Legal nature of acts of cooperation

Acts of cooperation can be qualified as responsibilities (Obliegenheiten) or as genuine contractual obligations (vertragliche Pflichten). A responsibility refers to behaviour which, although not mandatory, is required to avoid legal detriments to one's own interests. In contrast to obligations, responsibilities are not legally enforceable. The principal cannot therefore be forced to fulfil responsibilities.

There are hardly any statutory provisions on cooperation. In practice, though, the provisions of section 642 German Civil Code (BGB) from the law on contracts for work and services can often be used for IT projects. According to case law, however, acts of cooperation within the scope of section 642 German Civil Code (BGB) are just responsibilities of the principal and not obligations. Furthermore, section 642 German Civil Code (BGB) only describes cooperation as "necessary acts by the customer" and thus leaves a wide scope for interpretation. Acts of cooperation are generally to be regarded as "necessary″ if the contractor cannot properly provide the agreed service within the agreed deadlines without them. However, the specific acts of cooperation required, in particular their content and scope, can only be determined by interpreting the contractual agreements between the parties while taking the circumstances of the specific case into account. 

If acts of cooperation are to be demanded of the principal as binding services, these must be structured as a legally binding contractual obligation. The provisions in the IT project contract should express the fact that the parties agree on the independent enforceability of the cooperation and attach corresponding liability consequences to the failure to cooperate. If no contractual provisions have been agreed that expressly define cooperation as an obligation, there will often be legal uncertainty about the legal nature and scope of acts of cooperation, including the legal consequences if they are not performed properly.

Legal consequences of failing to cooperate as a responsibility

If the principal does not perform a required act of cooperation on time, in the required quality or at all, this constitutes a case of failure to cooperate. The contractor's claims in the event of the principal's failure to cooperate depend largely on whether it is just a responsibility or a genuine cooperation obligation.

If it is only a responsibility, the contractor generally has no claim for damages against the principal. In this case, the contractor may be entitled to compensation in accordance with section 642 (1) German Civil Code (BGB) and termination in accordance with section 643 German Civil Code (BGB). The main prerequisite for sections 642 and 643 German Civil Code (BGB) is a default in acceptance by the principal in accordance with section 293 German Civil Code (BGB). This is generally the case if the principal is offered the contractually owed service in the proper manner. Since the contractor is duty-bound to produce a work in accordance with section 631 (1) German Civil Code (BGB), default in acceptance in this sense can only occur if the agreed service (e.g. the software product) is offered ready to be accepted. Because the contractor is unable to complete the agreed service and offer it ready to be accepted due to the failure to cooperate, the prevailing view is that it is sufficient to establish default in acceptance if the contractor shows willingness to perform the service and expressly asks the principal to cooperate.

The compensation according to section 642 German Civil Code (BGB) is generally limited to compensation for the provision of equipment, personnel and material during the period of default in acceptance that could not be put to use elsewhere. The amount is therefore based on the duration of the default and the amount of the agreed remuneration, where saved expenses and other income must be deducted to the expense of the contractor. Termination in accordance with section 643 German Civil Code (BGB) is also only possible under strict conditions. The provision stipulates that in the case of section 642 German Civil Code (BGB), the contractor is entitled to terminate the contract if it has set the principal a reasonable extension to the deadline to  perform the act of cooperation and if the act has not been performed by expiry of the deadline.

Legal consequences of failing to cooperate as a contractual obligation

If, by contrast, a cooperation obligation exists, as either a secondary or a primary obligation, the contractor can assert claims for damages in accordance with sections 280 ff. German Civil Code (BGB), including lost profits. A prerequisite for this is that the principal does not fulfil its contractually agreed cooperation obligation in the required quality, on time or at all. 

Cooperation obligations in IT projects are generally to be qualified as independently enforceable secondary obligations that supplement the primary obligations. In the event of a breach of an independent secondary obligation, claims for damages pursuant to sections 280, 281 (1) (damages in lieu of performance and compensation for positive interest) may be asserted after a deadline has been set but not been met. The contractor could also rely on compensation from section 642 German Civil Code (BGB) in the event of a breach of the secondary cooperation obligation , since the claims of sections 280 ff. and section 642 German Civil Code (BGB) are not mutually exclusive. However, it must be taken into account that compensation claims in accordance with section 642 German Civil Code (BGB) do not require a deadline to be set. They are also less advantageous for the contractor, as a claim under section 642 German Civil Code (BGB) does not include compensation for llost profits.

A distinction must be made between independently enforceable secondary obligations and protection obligations unrelated to performance in accordance with section 241 (2) German Civil Code (BGB), which can be classified as merely dependent secondary obligations. A breach of a dependent secondary obligation only leads to liability under section 311 (2) and (3) and section 280 German Civil Code (BGB) (damages in addition to performance – compensation for the attributable damage).

An act of cooperation can only be considered a primary obligation if the contract expressly stipulates that the respective cooperation is to constitute a primary obligation that has a separate, independent significance in the contractual relationship. A breach of a primary obligation to perform acts of cooperation also entitles the contractor to compensation in accordance with sections 280 ff. German Civil Code (BGB). 

Explicit provisions on cooperation in the IT project contract are required

Organising, managing and implementing acts of cooperation are often underestimated in complex IT projects. Relying exclusively on statutory provisions is insufficient in most cases and creates legal uncertainty. In view of the importance of cooperation obligations for the success of IT projects and the potential liability for failure to properly perform such obligations, a legal conflict is often predestined in the event of inadequate contractual agreements on acts of cooperation.

Due to the cautious statutory provisions on acts of cooperation the controversial legal nature of acts of cooperation and the associated legal uncertainties, it is recommended that the principal's cooperation be contractually agreed to a sufficient extent. In particular, the project contract should contain provisions on the legal nature of the acts of cooperation. This will increase legal certainty with regard to the legal consequences of failure to cooperate. It is also advisable to settle when the acts of cooperation is to be performed to minimise the potential for conflict. Furthermore, this will put the principal in default in acceptance without any the contractor making any further requests. It is possible to specify the exact timeframe in a schedule, which can make it easier to prove that cooperation was requested in good time.

From a practical point of view, it therefore makes sense to obtain an early overview of the nature and scope of the cooperation that will be required of the principal. This will also help the principal gain an impression of which acts of cooperation it can fulfil itself and which will require external help. These preparations are often essential to be able to sufficiently and specifically agree acts of cooperation in the contract.

You can find out more about this in our blog series on IT projects (in German). You can subscribe to this blog series via the RSS feed to be informed about new posts.