Contractor dies during construction: works contract, personal performance and partial remuneration

Start by identifying the contractor. The contract, offer and invoices may name an individual sole trader. They may also name a GmbH or another company while a particular person performs or supervises work on site.

This distinction shapes the entire case. Section 1171 ABGB refers to work where the contractor's special personal qualities matter. The specific work must be examined. A personal relationship, professional title or presence on site does not by itself prove that personal performance was owed.

The death of a managing director is a different trigger where a company is the contracting party. The company remains the contractual counterpart to be examined. Representation, outstanding work and project organisation follow from the contract documents and the way the project was run.

A personal connection is more likely where the client selected the contractor for individual expertise, design or performance. Standardised or division-of-labour construction work may lead to another result. The agreed work and its content determine the classification.

Review the contract for wording on personal performance, employees, transferability and the organisation of the work. The scope of works, offer and pre-construction communications may also show which qualities were decisive for the appointment.

The death alone does not establish automatic termination. The presence of material on the site does not establish continuation either. The personal connection to the promised work must be clarified first.

Section 1171 ABGB provides for expiry when the contractor's special personal qualities were material to the work. In that situation, the original order cannot simply be treated as continuing unchanged.

If that personal quality was not decisive or cannot be established from the documents, death does not end the construction contract merely as an event. The contracting party, organisation of the work, outstanding duties and communication with the estate or company must then be addressed separately.

The provision also expressly deals with the death of the client. If the client dies, the heirs remain bound by the contract. That statement concerns the client side and must be kept separate from the conditions applying to the contractor side.

If the works contract expires because of the contractor's death, section 1171 ABGB names two bases for the heirs' claim. It covers the price of prepared usable material. It also covers a part of the remuneration appropriate to the value of the work performed.

The account must therefore identify which material was prepared and is usable for the project. Ordered goods that were never prepared, unusable parts and unsupported cost assertions cannot simply be treated as the same item. The condition and usability of the material belong in the site record.

The work must also be assessed by value. A general invoice for the entire agreed remuneration does not show which part was performed and became economically useful to the client. Measurement records, photographs, plans, delivery notes and payment records provide a traceable basis.

The review needs the signed contract with all schedules, the offer, scope of works and amendments. Add invoices, payment records, delivery notes, site diaries, plans and messages to the file.

Record the site status at the relevant time with photographs, measurements and a list of outstanding work. For material, note whether it was prepared, delivered, installed and usable for the specific project.

Only then can you discuss continuation, handover and accounting with the estate or company. A clear chronology keeps the contractor's death separate from issues arising solely from insolvency, termination or defects.