Acceptance is the most important moment in the construction contract. With it, risk, burden of proof and warranty shift, and the remuneration falls due. Anyone who underestimates it gives away rights.
What acceptance is
With acceptance, the client declares that they recognise the work as essentially in conformity with the contract. It is thus far more than a formal endpoint: it is the legal turning point at which decisive effects of the construction contract change.
Up to acceptance, the contractor bears full responsibility for the work. With acceptance, this distribution of burdens shifts fundamentally. No one should therefore declare an acceptance in passing.
The legal consequences
Acceptance triggers several effects at the same time:
- Passing of risk: the risk for the work passes to the client.
- Remuneration falls due: the contractor’s claim to payment becomes due.
- Start of the limitation period: the warranty periods for defects begin to run.
- Reversal of the burden of proof: after acceptance, the client generally has to prove defects; before, the contractor has to prove freedom from defects.
These consequences work in favour of and against both sides. This is precisely why the timing of acceptance is often itself the subject of dispute.
Forms of acceptance
Formal acceptance with a record is the safest option because it documents the condition of the work and any reservations. Implied and fictitious acceptances, by contrast, often lead to dispute over whether and when.
The course of a formal acceptance
Defects and reservations
An acceptance does not exclude liability for defects, but it changes the legal position. Anyone who accepts without reservation despite known defects can lose rights. Known defects and contractual penalties must therefore be expressly reserved in the record.
Expert support of the acceptance ensures that nothing is overlooked and that the reservations are correctly formulated. This is exactly where seamless construction supervision pays off: it knows the work and its weak points and can prepare the acceptance.
Acceptance and commissioning on railway projects
In railway construction two terms meet that are often confused: the contractual acceptance and the official commissioning. Acceptance governs the relationship between client and contractor. Commissioning under the EIGV permits the installation to be used at all.
Both are necessary but not the same. An installation can be contractually accepted and yet not in operation, or conversely ready for operation but not yet contractually accepted. Anyone who does not keep both strands in view risks gaps at the end of the project.
On large projects, partial acceptances also occur: individual sections or trades are accepted while others are still under construction. Each partial acceptance triggers, for its part, the same legal consequences as an overall acceptance.
Seamless construction supervision brings acceptance and commissioning together: it provides the verifiable documentation for both and ensures that no open points remain at the transition from construction to operation.
Häufige Fragen
What does construction acceptance bring about?
It triggers the passing of risk, the falling due of the remuneration, the start of the warranty periods and generally a reversal of the burden of proof.
What forms of acceptance are there?
Formal acceptance with a record, implied acceptance through conclusive conduct and fictitious acceptance where acceptance does not take place in time. Formal acceptance is recommended.
Should you accept when there are defects?
Only with an express reservation. Anyone who accepts without reservation despite known defects can lose rights.
Edoé Lassey
Edoé Lassey führt die LND Ingenieure GmbH als Bauüberwacher und Ingenieur für Infrastruktur- und Tiefbau. Die zertifizierten Rollen Technischer Berechtigter, Sicherungsüberwacher, Schaltantragsteller und Bauvorlageberechtigung gehören zum Leistungskern.
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