Sometimes, an action speaks as much as words, even in the law of construction contracts. In this case, it was the agreement to pay the final invoice in installments. (Photo: © bacho12345/123RF.com)
Read aloud:
If the customer agrees to pay in installments with the craftsman, this may constitute conclusive acceptance of the work – even if the customer does not explicitly declare this.
In construction, acceptance is the crucial point for the tradesperson. This remains unchanged even under the new construction contract law . Acceptance has three essential legal consequences: Firstly, payment becomes due ; secondly, the risk of the work deteriorating or being destroyed passes to the client; and thirdly, the warranty period and its limitation period begin.
The last question often leads to problems in practice when a so-called implied acceptance is involved. This is acceptance that is not explicitly declared, but only through conclusive conduct . In this case, the agreement of an installment payment plan between the tradesperson and the customer constituted such implied acceptance.
Acceptance refused , what now? What tradespeople should know → here!
In the summer of 2006, a heating contractor supplied and installed a heating system and a well system . The well system was intended to supply the groundwater heat pump with groundwater. After the work was completed, the customer put the system into operation in July 2006. However, a defect occurred in the autumn of 2006, causing the well to overflow. The customer complained, and the contractor made the necessary repairs. He then submitted his invoice in November 2006. The customer did not pay the final invoice in full but agreed to an installment plan with the contractor on January 8, 2007, for the outstanding balance.
Operations management
Operations management
Operations management
From 2009 onwards, the heating system broke down with increasing frequency. Therefore, in January 2012, the customer initiated independent proceedings to establish that the system had fundamental defects . He demanded damages of almost €56.000 from the contractor. The heating contractor refused, citing the statute of limitations.
The Higher Regional Court of Munich (Case No. 20 U 124/19) sided with the tradesman and upheld the statute of limitations. The court reasoned, among other things, that although the customer had not expressly declared acceptance , a tacit acceptance had nevertheless occurred, which has the same legal consequences as an expressly declared acceptance.
The judges emphasized that the implied acceptance was evident in the installment payment agreement of January 8, 2007. At that point, the work was ready for acceptance, or rather, a situation of acceptance existed. From both the client's and the contractor's perspectives, the heating system was completely finished . This had to be assumed, especially because the client had already put the heating system into operation and had had sufficient time since autumn 2006 to test its functionality.
In this context, the court acknowledged that the duration of a reasonable inspection period is always dependent on the individual case, as the nature and scope of the respective work significantly influence the inspection period, and therefore no generally applicable deadlines can be applied. With regard to the present case, the court assumed that a reasonable inspection period had expired by the end of 2006 at the latest. However, the court denied, in favor of the contractor, the existence of an inspection period covering the entire duration of the winter.
This meant that the statute of limitations began to run either on December 31, 2006, or on January 8, 2007, the date the installment payment agreement was concluded. Given the applicable five-year limitation period, it had therefore expired no later than January 8, 2012. However, the customer did not file his application for an independent expert assessment, which suspends the statute of limitations , until January 20, 2012. Consequently, the application could no longer suspend the statute of limitations, and the heating contractor was able to effectively raise the defense of the statute of limitations.
In practice, disputes often arise regarding the acceptance of services whose functionality depends on seasonal conditions . These include, for example, heating systems, air conditioning systems, or photovoltaic systems. Tradespeople should ensure that they demonstrably grant the client a reasonable period to inspect the work. Secondly, this period should also fall within the relevant season . For a heating system, this would be autumn or winter; for a photovoltaic system, the period should be spring or summer.
What constitutes "appropriate" cannot be answered categorically. Rather, appropriateness is determined by the specific circumstances of each individual case . In addition to the nature and scope of the service, other factors must also be considered, such as whether the client is a consumer (i.e., a layperson) or whether they are being advised by a planning or architectural firm. According to a ruling by the Higher Regional Court of Munich, however, it is not necessary for the inspection period to cover the entire duration of the season.
By law, the warranty period begins upon acceptance of the work, and responsibility for the house transfers to the client. Payment for the work is also due from this point onward. The client's warranty rights only arise after the work has been accepted. This was clarified by a landmark ruling of the Federal Court of Justice.
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