What is Construction Acceptance?
Construction acceptance (German: Bauabnahme) is the formal declaration by the client that the construction work has been performed in accordance with the contract and is essentially free of defects. It is one of the most important legal acts in construction contract law with far-reaching consequences for both parties.
Legal Framework
German Civil Code (BGB):
- § 640 BGB: Acceptance — central provision
- § 641 BGB: Payment becomes due after acceptance
- § 644 BGB: Transfer of risk upon acceptance
- § 634a BGB: Limitation of defect claims
VOB/B (public construction contracts):
- § 12 VOB/B: Acceptance — detailed provisions
- § 12(4) VOB/B: Deemed acceptance after 12 working days
- § 12(5) VOB/B: Partial acceptance
Legal Effects
| Effect | Before Acceptance | After Acceptance |
|---|---|---|
| Payment | Not yet due | Due (§ 641 BGB) |
| Risk transfer | Contractor | Client (§ 644 BGB) |
| Burden of proof | Contractor proves no defects | Client proves defects |
| Limitation | Not running | Starts running |
| Contractual penalties | Can be claimed | Only if reserved |
Types of Acceptance
- Formal acceptance (§ 12(1) VOB/B): Joint site inspection, written protocol — standard for public works
- Implied acceptance: Client takes the building into use without explicit declaration
- Deemed acceptance (§ 12(5) VOB/B): Contractor requests acceptance; if client doesn't respond within 12 working days, acceptance is deemed granted
- Partial acceptance: Acceptance of individual sections — useful for large projects
The Acceptance Protocol
A proper protocol includes: project and contractor details, date and participants, description of work, identified defects (numbered with photos), deadlines for defect correction, reservations (contractual penalties, known defects, invoice review), and signatures.
Refusal of Acceptance
The client may refuse acceptance when material defects exist that significantly impair usability. For minor defects, acceptance may not be refused — they must be noted in the protocol.
Limitation Periods
| Contract Basis | Limitation Period |
|---|---|
| BGB contract | 5 years |
| VOB/B contract | 4 years |
| VOB/B for electrical/HVAC | 2 years |
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