Acceptance

Acceptance / Abnahme

May 22, 2024

What is acceptance?

When a contract for work forms the basis of the cooperation between the parties, the work produced must be accepted by the client. Acceptance is an actual declaration by the client that the work ordered meets the contractually agreed requirements. By accepting the work, the client confirms that it is complete and free from defects. Acceptance has several very important legal consequences.

Legal requirements for a successful acceptance

For acceptance to take place, the work must first be completed. This is the case when the contractor offers the work to the client for inspection. The work must also be free of defects at the time of acceptance. In accordance with Section 640(2) of the German Civil Code (BGB), the work is also deemed to have been accepted if the client has not accepted it within the acceptance period set by the contractor. This is referred to as fictitious acceptance. Such a deadline can also be contractually agreed.

How can acceptance take place?

There are two ways in which a work can be accepted. Either expressly by an actual verbal or written declaration by the client that the work is free of defects and has been accepted, or by a conclusive act on the part of the client. This can be either when the work is put into use or when the price for the work has been paid in full. Acceptance may also take the form of constructive acceptance if the work has not been accepted within the (agreed or fixed) period, Section 640(2) BGB. It should also be noted that any time limits set must be reasonable in the individual case.

What changes legally as a result of acceptance?

Acceptance has legal consequences for the rights and obligations of both the contractor and the client. After successful acceptance, the contractor is entitled to the agreed remuneration (Section 641 (1) Sentence 1 BGB), i.e. the remuneration becomes due. An advance payment by the client is generally not permitted under Section 641 (1) Sentence 1 of the German Civil Code, but may be agreed between the parties under certain conditions. The advance payment must be agreed individually and may not exceed 90% of the agreed total remuneration in accordance with Section 650 m (1) of the German Civil Code. After acceptance, the limitation period for warranty claims also begins to run in accordance with § 640 (2) BGB, which is two years in accordance with § 643a (1) No. 1 BGB.

In addition, the risk of loss of or damage to the work through no fault of the contractor shall pass to the client, section 644 (1) sentence 1 BGB. The contractor is then only liable for circumstances that occurred prior to acceptance.

This is also connected with the transfer of the burden of proof to the client. After acceptance, the customer must prove that a defect exists. The Client's legal position deteriorates considerably upon acceptance. The customer must give notice of any defects discovered during acceptance. Failure to do so may affect his rights (§ 640(2) BGB).

When can acceptance be refused?

The client can refuse acceptance if the work has a defect or the contractor has failed to fulfil an obligation under the contract for work and services. However, the defect for which acceptance is refused must be significant in accordance with Section 640(1) sentence 2 of the German Civil Code. A material defect is generally deemed to exist if the usefulness of the work for the customer is impaired.

However, before refusing acceptance, the client must set the contractor a reasonable period of time to repair or replace the work (so-called subsequent performance or cure) (Section 637 BGB). If the contractor fails to remedy the defect within the period set, acceptance may be refused.

Consequences of refusal

If the customer refuses to accept the work, the contractor remains obliged to provide subsequent performance. The risk of accidental loss or accidental deterioration shall not be transferred to the customer but shall remain with the contractor.

The client may reduce the remuneration owed in accordance with § 638 BGB or claim damages in accordance with § 636 BGB.

IT project contracts - acceptance is particularly important

An IT project contract is an agreement in the field of information technology relating to the provision of IT services. The IT project contract or IT contract is not a separate type of contract. These contracts govern the planning, development, implementation and often the maintenance of IT systems and software solutions. An IT project contract often has the character of a contract for work, especially if a specific result (e.g. functional software) is owed. However, such contracts usually also contain elements of a service contract, as consulting and ongoing services are also agreed. They are then referred to as mixed contracts because different legal principles apply and the applicable law is therefore adapted accordingly. In any case, acceptance is a crucial step in such cases, as it marks the fulfilment of the contractual obligations and the start of the warranty period, provided that there are elements of a contract for work and services. Both from the point of view of the contractor, i.e. the creator of the work, in most cases a digital agency or other IT company, and from the point of view of the client, i.e. the customer, it makes sense to include appropriate provisions in the contract regarding the service catalogue and acceptance. We will be happy to advise you on this, please contact us.

*If we use the generic feminine or the generic masculine in the future for better readability, this explicitly includes all genders.