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BGB 326. 2 If the obligee is solely or very predominantly responsible for the circumstance due to which the obligor does not , under section 275 ( 1 ) to ( 3 ) , have to effect cure , or if this circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance , the obligor retains the entitlement to consideration . However , he must allow to be credited against him what he saves due to release from performance or acquires or wilfully fails to acquire from other use of his labour .
BGB 615 If the person entitled to services is in default in accepting the services , then the party owing the services may demand the agreed remuneration for the services not rendered as the result of the default without being obliged to provide cure . However , he must allow to be credited against him what he saves as a result of not performing the services or acquires or wilfully fails to acquire through use of his employment elsewhere . Sentences 1 and 2 apply with the necessary modifications in cases in which the employer bears the risk of loss of working hours .
BGB 642. 2 The amount of compensation is assessed on the one hand on the basis of the duration of the default and the amount of the agreed remuneration , and on the other hand on the basis of what expenses the contractor saves or what the contractor can earn by employing his working capacity elsewhere .
BGB 648a. 5 If the contractor has unsuccessfully set the customer a suitable deadline to provide the security in accordance with subsection ( 1 ) , the contractor may refuse to carry out the work or may terminate the contract . If he terminates the contract , the contractor is also entitled to claim the agreed remuneration ; he must however allow set-off of the expenses he saves as a result of cancelling the contract or acquires or wilfully fails to acquire from other use of his labour . There is a presumption that the contractor is accordingly entitled to five percent of the remuneration accounted for by the part of the work not yet provided .