Are there penalties for delayed deadlines?

Without an Agreement, There Is No Penalty

A penalty requires that the contractor has promised it (§ 339 BGB). If there is nothing in the contract, in the event of a deadline overrunning, only the delay damage remains – and that must be quantified and substantiated. This is particularly difficult with software: Anyone wanting to prove what a six-week delay in the productive start has cost needs figures that are rarely available.

The sober purpose of a penalty is therefore not punishment, but facilitation of proof: It replaces the damage proof with a previously determined amount.

What Applies If Nothing Is Agreed

A "ca." date in the offer is usually not a binding date. Anyone wanting a fixed date must agree on it as such, with a date.

What Should Be Included in a Usable Clause

1. Reference Size – Net order value or only the value of the delayed section. This is the biggest lever and is most often overlooked.
2. Rate and Rhythm – for example, per started calendar week.
3. Upper Limit – without a cap, the clause is not calculable for either party.
4. Fault and Cooperation – Delays arising from missing approvals, test data, or interface access from the client may postpone the deadline.

The Trap at Acceptance

§ 341 Abs. 3 BGB: If the client accepts the service, they can only demand the penalty if they reserve the right at the time of acceptance. This reservation must literally be included in the acceptance protocol. In practice, it is regularly forgotten – and thus the penalty is lost, even though the delay was undisputed.

Limits of Amount

In general terms and conditions, a penalty is subject to content control under § 307 BGB. The Federal Court of Justice has ruled for construction contracts that a standard penalty of more than five percent of the order sum unfairly disadvantages the contractor. This limit cannot be transferred uncritically to software contracts but serves as a guideline.

An disproportionately high penalty can be reduced by the court upon request (§ 343 BGB). This does not apply to merchants: Anyone promising the penalty in the course of their commercial business cannot have it reduced according to § 348 HGB. GmbHs are commercial entities – thus the clause applies here in full force.

What a Penalty Costs, Even If It Never Becomes Due

It is not free. A provider who accepts it calculates a risk surcharge and plans deadlines more defensively. The result is higher prices and longer promised durations – with the same actual effort.

A penalty makes sense where a hard external deadline exists: a trade fair, a system shutdown date, a legal deadline such as the obligation to send e-invoices from January 1, 2027. For exploratory projects, whose scope clarifies during work, it is the wrong tool: It shifts the energy from the matter to the question of who is responsible for the delay.

At Ouhud GmbH

available upon request

This text does not replace legal advice.