No warranty claims before acceptance!

The customer is only entitled to warranty rights after acceptance of the work. This is clarified by a long-awaited landmark ruling by the Federal Court of Justice.

This article is part of the special topic "Acceptance: The linchpin for tradesmen's rights".

The question remained open for a long time, but now the Federal Court of Justice (BGH) has published its landmark ruling of January 19, 2017: Before acceptance, the private client has no warranty rights in the event of defects. This means, for example, that they cannot yet claim a price reduction or damages .

Background: Until acceptance, the contractor is generally free to choose how to fulfill the client's requirements. If the client could assert warranty rights during the construction phase, this would infringe upon the contractor's rights. Of practical importance is the fact that clients often discover significant defects during the course of work and wish to refuse acceptance . However, warranty rights – such as substitute performance, price reduction, damages, or advance payment – ​​are only available to private clients ( unlike in VOB contracts! ) after acceptance. Declaring acceptance despite identified defects, solely to access warranty claims, can be problematic, as acceptance entails several consequences: the final payment becomes due, the risk and burden of proof for defects transfer to the client, and the warranty period begins.

The case

The customer commissioned a tradesman to carry out facade work. The work was completed, but no formal inspection took place. Later, defects became apparent. The customer complained and set a deadline for the repairs. The tradesman rejected the complaint, claiming he could not identify any defects . The customer then sued for an advance payment equal to the cost of remedying the defects.

The judgment

The Federal Court of Justice (BGH) has now clarified that, in principle, a private client can only successfully assert rights regarding defects after acceptance of the work. However, it allows for exceptions :

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If the client opts for damages, price reduction, or substitute performance, they transform the contractual relationship into a settlement relationship and can assert these rights regarding defects even without acceptance. Therefore, their refusal to accept the work is not a problem in this case.

If, however, the client opts for an advance payment , i.e., payment of the costs for the remedial work, they must generally declare acceptance . Unless (exception!), they clearly inform the contractor that they no longer wish to cooperate under any circumstances : in that case, they can refuse acceptance. Simply requesting an advance payment is not sufficient grounds for this, according to the German Federal Court of Justice (BGH).

practical tip

"In practice, this means there's hardly a conceivable scenario where a customer who refuses acceptance couldn't still claim under the warranty – if they proceed skillfully," explains lawyer Michael Bier, department head at the Düsseldorf Chamber of Skilled Crafts , regarding the ruling. "If a customer complains about defects and demands an advance payment for self-remedy, tradespeople should first insist on acceptance of the work . If the client refuses, they should ask if they wish to continue working with the client. If they decline, the relationship is clarified."

Federal Court of Justice, Judgment of 19 January 2017, Case No. VII ZR 301/13