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On the afternoon of 17 April 2024, Jochen Glöckner, Professor at the Law Faculty of the University of Konstanz and Director of the Institute for Engineering Law in Freiburg, Germany, was invited by the Law Faculty of Southeast University to give a lecture on the topic ‘Keep it Simple, Stupid! Keep it Simple, Stupid!-Promoting the Production of Residential Housing by Lowering the Quality Requirements of the Contract’. (Keep it Simple, Stupid! - Promoting the Production of Residential Housing by Lowering the Quality Requirements of the Contract). The lecture was hosted by Mr Xing Chenxi from Southeast University School of Law, with Professor Zhe Huang from Nanjing Normal University School of Law as the moderator, and Postdoctoral Fellow Mr Dong Luyu from Southeast University School of Law as the translator. During the two-hour lecture, Prof. Glöckner focused on ‘the real problems faced by the construction industry in Germany’, ‘the problems faced by engineering law’, ‘potential legal solutions’, ‘future development’ and ‘the problems faced by the construction industry in Germany’. ‘Prof. Glöckner gave a wonderful lecture on the theory and practice of German engineering law in four parts, “Prospects and Prospects for Future Development”. Teachers and students from inside and outside the university listened to the lecture carefully and expressed their opinions, the lecture had a strong academic atmosphere and warm response.

At the beginning of the lecture, Mr Xing Chenxi expressed his warm welcome to Prof Jochen Glöckner and Prof Zhe Huang. Afterwards, Mr Xing gave a brief introduction to Prof Glöckner, who is a professor at the Law Faculty of the University of Konstanz, Chairman of the German and European Chair of Private and Commercial Law, Director of the Institute of Engineering Law in Freiburg, and a judge at the Higher Regional Court (6th Senate) in Karlsruhe, whose research areas include contract law and consumer protection in the context of construction projects, intellectual property protection and its digitisation, and the protection of consumers, Intellectual property protection and its digitalisation, German and European unfair competition law, antitrust law, and digital jurisprudence in relation to civil and commercial law. Professor Glöckner is the author of the draft of the Modernisation Act on Construction Contracts of the German Civil Code and the driving force of the reform, and has published books such as ‘Handbook of Private Construction Law’, ‘Functional Legal Conditions and Forms of Conflict Resolution in the Chinese and European Markets’, ‘Cornerstones of European Unfair Competition Law’, ‘The Law of Cartels’, and ‘Market Communication Between Intellectual Property Rights and Consumer Protection’. He has published more than 100 papers.

In the first part of the lecture, Prof Glöckner introduced the current realities facing the German construction industry. Firstly, cultural changes have led to an increase in the number of families, which is characterised by children leaving the parental home for study or work reasons, partners remaining separated for professional development and personal independence, and elders continuing to stay in their previously larger houses. At the same time, there is a general tendency to move to large cities such as Berlin and Hamburg, which further exacerbates the demand for housing in urban centres and creates a significant housing shortage. Secondly, previously ambitious plans were thwarted by completely different developments, with the Russian-Ukrainian conflict in February 2022 leading to a sharp spike in the price of natural gas, oil and other energy sources, triggering severe inflation in the eurozone and causing the ECB to raise interest rates ten times from July 2022, ending a long period of ultra-low interest rates of less than 1.5 per cent since 2009, and the interest rates on projects to be According to Professor Glöckner, the expected solution to the problem was to reduce construction costs, but the marked inflation in the cost of building materials, labour, environmental equipment and real estate has added to the already depressed construction industry. Reducing construction costs through specific normative adjustments has thus become the only path to solving the problem.

In the second part of the lecture, Prof Glöckner explained the problems facing German engineering law. Firstly, a distinction needs to be made between public and private law. In building regulations, public law requirements usually include the use of space (planning law) and public safety (static calculations and requirements; necessary building spacing; available light and air, etc.), but public law requirements hardly solve the above problems because nobody wants to cut back on the protection of natural resources or public safety. Private law requirements are more concerned with the specific agreement and the legitimate expectations of the parties to the agreement, and require that the construction contract and the operations of the project actually take into account what the client needs. Secondly, the legal basis for the legitimate expectations of the parties needs to be explored, and Professor Glöckner analysed in detail Section 633 of the German Civil Code (BGB) ‘Defects in rem and in right’, which requires that the contractor shall enable the contractor to obtain work free of defects in rem and in right. When the work is of the agreed quality, there are no defects in rem. When no quality is agreed upon, the work is free of material defects if it is suitable for the use intended by the contract or for ordinary use and shows qualities which are usual for work of the same kind and which the contractor would have expected according to the kind of work he does. The case law of the German Supreme Court has created an implied agreement that the general rules of technology must be observed, and the case law also provides that the parties are free to deviate from the general rules of technology that are not related to public safety on a contractual basis. However, for such an agreement to be effective, it is not only necessary that the agreement be explicit, but also that the client be informed of the deviation from the general technical rules and of the possible negative consequences in each case. If the contractor does not comply with the generic technical rules, there will be a high risk of very strict liability for material or quality defects. Thirdly, the legal consequences resulting from the GTC need to be analysed. Strict enforcement of the GTRs not only leads to the entrenchment of specific building techniques in their implementation, but also creates barriers to the implementation of new techniques, which may often be more efficient or sustainable. In addition, it may result in increased costs.

Prof Glöckner described how these issues have also led to extensive discussions. The Bavarian Chamber of Architects has proposed the creation of a new ‘E-class’ standard for residential buildings: ‘E’ for ‘experimental’ or ‘efficient’. E’ stands for “experimental” or “efficient”. The Federal Ministry of Justice has also taken up this new proposal, setting up a jury of experts to analyse the current legal problems of overburdening and to explore ways of simplifying construction. Just a few days ago, on 12 April 2024, Justice Minister Buschmann gave an update on the progress: the legislation is in the process of lowering the ‘comfort standard’.

In the third part of the lecture, Prof Glöckner presented possible paths to solving the legal problems Germany is currently facing. The first path is to abandon the assumption of an implied agreement to comply with the GTCs: firstly, most experts agree that the GTCs should be retained, as they play a very important gap-filling role in contracts, and are commonly used and relied upon in construction. Secondly, the general technical rule is also necessary to maintain the long-term durability of the building. In Germany, where the contractual liability period for physical defects is only five years, but where most dwellings are in use for more than 80 years, the GTRs provide the client with a technical safety margin and reduce grey energy emissions. Thirdly, the use of GTRs can improve procedural efficiency. Firstly, it reduces the time taken to develop individual contracts, secondly, it allows the creation of vocational training in general knowledge, and thirdly, it reduces supervision during the construction of works. The second path is to abandon the high requirements for deviating from the general technical rules: however, due to the information gap between the consumer client and the developer, the general technical rules can guarantee the obligation of the developer to inform. The third path is to remove the definition of defects per se in each case: this path expects to transform the General Technology Rule into a rebuttable presumption of defects, whereby a contractor who fails to comply with the General Technology Rule can prove that the construction techniques used have been proven to be competent and sustainable, for example, by scientific testing in other countries. Similarly, this rebuttable presumption requires the contractor or the producer of the construction material to provide proof of the long-term availability of the alternative material or technology. For contractors, this path could earn some market benefits. The fourth path is a limitation on the ‘comfort standard’ proposed by Attorney General Buschmann: Although we do not address the issue of public safety from an administrative law perspective, it is closely related to construction. The general technical rules are not usually comfort-oriented, for example, in the case of noise insulation, the general technical rules only provide for minimum standards, which are usually not applicable. It is therefore difficult to identify to what extent a standard is about comfort and to what extent it is motivated by technical considerations. The increase in the number and stringency of generic technical rules is related to the growth of technical knowledge; the more risks that are identified, the stricter the rules become, and regulation is usually just a one-way street.

In the final part of the lecture, Prof Glöckner looks at future developments and solutions. Firstly, a good way to solve the problem of regulatory one-way streets is to liberalise the regulations governing them; secondly, there are limitations to the ‘comfort standard’ proposed by the Minister of Justice, and instead it may be more appropriate to transform the general technical rule into a rebuttable presumption; thirdly, the question remains: can a modest reduction in production costs compensate for the past surge in land prices? can compensate for the past surge in land prices? We have seen from the outset that land prices have risen by more than 100 per cent over the last decade, and that this has actually been covered by very low interest rates, whereas today we essentially have the economic burden of high prices multiplied by the fiscal burden of high interest rates. Fourthly, Professor Glöckner suggested that the primary factor influencing the reduction of residential construction costs may be policy making, through lenient policies, allowing more, efficient and high quality building materials as well as new construction methods to be put into use, thus lowering construction costs and breaking the self-stabilising effect of the generalised technical rules.

In the talk session, Prof Huang Zhe made a wonderful comment on Prof Glöckner's lecture. Professor Huang Zhe thought that the issues discussed in Professor Glöckner's lecture were very forward-looking and current in Germany, and China is facing similar problems. Firstly, Prof Glöckner mentioned in his lecture that the construction of houses can be facilitated by lowering the standard of quality requirements through contractual agreements. However, the problem is that common quality standards are usually based on the quality and safety of the building, and Chinese construction law and contract law do not allow the parties to lower or exclude the standard of quality through contractual agreements, and the parties can only agree on a higher standard. Secondly, China and Germany have different perspectives. In Germany, a construction contract is not necessarily a commercial contract, as the land is privately owned, about 70 per cent of construction contracts are concluded directly between the building developer and the consumer, and a distinction is made between whether the fixer is the building developer or the consumer, and a lowering of the technical standard is not permitted out of the protection of the parties to the civil contract and the requirement of fairness. In China, on the other hand, the opposite is true: there is a public interest attached to all construction projects, and Chinese building codes and requirements are designed to protect the public interest. Therefore, these are two different directions of thinking. Thirdly, there has always been a contradiction between public and private law in construction projects, with public law focusing on regulation and private law on autonomy, and Professor Glöckner has mentioned several times in his lectures whether regulation can be ruled out through the sphere of autonomy, except in the field of consumer protection. After the transition of social transformation, excessive regulation will in fact affect autonomy and inhibit technological innovation and economic development, so in this process, it is necessary to constantly adjust to leave space for private law, to provide a good framework for the development of society and the effective role of rules in social life, the rule of law.

In the interactive part of the lecture, the audience both inside and outside the university spoke enthusiastically, and Professor Glöckner also gave a detailed and wonderful explanation one by one.

The lecture broadened the horizons of studying engineering law, and at the same time triggered the enthusiasm of the teachers and students of Southeast University for the theoretical study and practical research of engineering law. Afterwards, the course ‘Topics of Global Engineering Legal System’ will invite more experts and scholars to lead you to study the engineering legal system of various countries and contribute to the construction of China's engineering legal system to the strength of Southeast University.