The decision of the BGH was based on the following set of facts: The claimant, a public authority, advertised for tenders for carpentry work on a building project. The defendant building firm submitted the lowest tender - in comparison with five others received. After the deadline for submission of tenders had passed, the building firm informed the claimant that an error had been made in the calculation of the tender price. The transport and assembly costs had been left out by mistake, and the firm asked the claimant to take the tender out of the competition and offer the contract to someone else. The claimant refused to do so, and gave the contract to the defendant without taking the error into consideration. When the defendant did not proceed with the work, it was eventually given to someone else. The claim asserted against the defendant was for the additional costs incurred in comparison with the defendant's tender.
The Landgericht dismissed the claim, and the claimant's appeal was also unsuccessful. The appeal in revision by the claimant led to the quashing of the appeal court's decision and a reference of the case back to the appeal court. According to the judgment of the BGH, an mistake in calculations was not of itself a sufficient reason for avoiding a contract, if the recipient of the erroneous information knew of it or had avoided obtaining that knowledge in bad faith. Nevertheless, the recipient of the erroneous information - on the basis of precontractual responsibility or abuse of rights - might be obliged to point out to the informer his mistake. In the tendering process, a public contractor was not usually under any obligation to check the tenders for mistakes in calculation or to make further investigations; but exceptionally such a duty might exist when the fact of a mistake in calculation and the unreasonable consequences thereof for the tenderer is obvious from the tender or from other circumstances known to the contractor.
The following contributions examine the judgment from the standpoint of Austrian, Portugese, Swedish and Greek law.European Review of Private Law