Obligation to accept
In accordance with section 640 of the Bürgerliches Gesetzbuch (BGB – German Civil Code), the client is required to physically accept the work done by the contractor and to declare that it accepts the work as, in the main, as contractually agreed upon. It must therefore accept the work produced as contractually agreed upon if the work delivers the agreed upon quality. This is also stipulated in section 12 Verdingungsordnung für Bauleistungen B (VOB/B – German Construction Contract Procedures B), whereby the work must be accepted within twelve working days of completion and announcement thereof by the contractor.1
The acceptance and its date are of the utmost importance for the completion of the construction contract. Acceptance means that the remuneration for the work is due, the limitation period for warranty claims begins and the risk is transferred to the client. Furthermore, the burden of proof for defects not expressly referred to on acceptance passes to the client. At the same time, claims not reserved for known defects and contractual penalties expire. The client should therefore reserve this.2 This far-reaching significance means that acceptance is one of the main duties of the client in building contracts. If necessary, the contractor can therefore also sue for the obligation to accept to be fulfilled. However, the exact dates and specific features in accordance with VOB/B must be taken into account.3
Neither the German Civil Code nor the German Construction Contract Procedures B specifies mandatory formal requirements for acceptance. Accordingly, this can be done in different ways. Section 12 VOB/B describes the option of formal acceptance, which is carried out at the request of one party. However, formal acceptance can be agreed in the contract, which is usually recommended. In this form of acceptance, any findings made during a joint inspection are logged and reservations by the client for defects and contractual penalties and related objections of the contractor are recorded.4
If no formal acceptance is agreed or wished for, the work is considered accepted (notional acceptance decrease) in accordance with VOB/B 12 working days after written notification of completion by the contractor.5
Another form of acceptance can be the start of use. If the client starts uses the work, it is considered accepted six working days after the start of use. This regulation does not apply if defects were notified prior to beginning use. Both notional acceptance and acceptance through use can be contractually excluded.
Before acceptance by the client, the construction authorities must carry out the public law and technical acceptance. This is merely the checking of the building for compliance with the building permit and the safety requirements in addition to the acceptance of the building technology.6