Acceptance of the finished work is the main obligation of the customer who has commissioned the work from the contractor. It is however not uncommon for disputes to arise, particularly in the construction of buildings, before completion, which prevent acceptance. If in such cases the purchaser does not carry out the acceptance before the end of a deadline that has been set, this can lead to a legal fiction of the acceptance.
Fictitious acceptance after setting a deadline
This legal consequence is made possible by Sec. 640 para. 2 of the German Civil Code. According to this, a work is also deemed to have been accepted if the customer does not refuse acceptance despite the setting of a deadline by the contractor, stating at least one defect. This was the case recently decided by the Higher Regional Court of Schleswig (Higher Regional Court of Schleswig, judgment of 10.12.2021 – 1 U 64/20). The customer had already complained about defects during the construction period, but the defects were not rectified. The contractor set a deadline for acceptance and expressly offered to remedy the defect, but the customer did not respond.
Consequences of default in acceptance
After the deadline had expired, acceptance was deemed to have taken place by law. The fact that the customer had already invoked defects beforehand did not prevent this, because he had not named at least one defect after the deadline had been set. The contractor’s claim for payment was therefore due. However, the contractor’s claim for remuneration was only partially successful, as the customer is entitled to retain an appropriate part of the remuneration even after the defect has become due. As a rule, an appropriate amount is twice the amount required to remedy the defect. However, this again does not apply if the purchaser is in default with the acceptance of the offered defect removal (cf. BGH, judgment of 06.12.2007 – VII ZR 125/06).
Removal of defects and acceptance: Prudent action is called for
The decision of the Celle Higher Regional Court shows once again that there can be many points of friction when dealing with defects in connection with the acceptance of craftsmen’s services. Here it is particularly important to make the right declarations at the right time in order to avoid (unnecessary) disputes. Horwath & Meier will be happy to advise you on the correct course of action if defects already occur during the construction period or if defects become apparent during acceptance.