Acceptance is a legal term that appeared for the first time in the sense of "reference" in 1725. Today it is used in the purchase contract in the sense of taking over the object of purchase by the buyer as a counterpart to the handover by the seller. In the case of work contracts, on the other hand, acceptance means more than mere physical receipt. The procedural law speaks of acceptance when the oath is accepted by the court , the financial report or the affidavit by the bailiff .
The conceptual content of the acceptance depends on whether it is a purchase or work contract. A partial acceptance is even provided for in the architect's contract.
In the case of the purchase contract, the buyer is obliged to pay the seller the agreed purchase price in accordance with (2) of the German Civil Code and to accept the purchased item. Acceptance is the process by which the buyer takes possession ( BGB) of the purchased item from the seller. This mere physical acceptance is a real act .
In the case of a contract for work and services, the purchaser is obliged to accept the contractually manufactured work in accordance with defects . Whether there is a significant defect is determined by whether it is reasonable for the client to accept the work and accept the legal consequences arising from this . A major defect can exist if either the usability or functionality of the work is significantly impaired or the defect has considerable financial weight, i.e. H. requires considerable financial expenditure to eliminate it.(1) BGB, unless acceptance is ruled out due to the nature of the work. The acceptance cannot be refused due to minor
Since May 2000, the law has differentiated between acceptance through a declaration by the customer ( legal acceptance ; § 640 Paragraph 1 Clause 1 BGB) and the equivalent fictitious acceptance (§ 640 Paragraph 1 Clause 3 BGB old version) for works that can be accepted if the After completion of the work and a reasonable deadline set by the entrepreneur, the customer did not refuse acceptance in due time, although he was obliged to do so. With an amendment that came into force on January 1, 2018, Section 640 Paragraph 1 Clause 3 BGB was deleted and a similar provision was standardized inParagraph 2 Clause 1 BGB, according to which a work is also deemed to have been accepted if the entrepreneur has submitted to the customer has set a reasonable deadline for acceptance after completion of the work and the customer has not refused acceptance within this period, stating at least one defect. This legal consequence occurs according to § 640 paragraph 2 sentence 2 BGB - if the customer is a consumer - but only if the entrepreneur has not declared the customer with the request for acceptance on the consequences of a defect or without specifying defects has indicated refused acceptance. This notice must be in text form. With this, the national legislator implemented a European consumer protection directive. The earlier § 640 Paragraph 2 BGB (which regulated that in the event of acceptance despite knowledge of the defect, the customer should only be entitled to the warranty rights from § 634 No. 1 to 3 BGB, provided that he exercises his rights due to the defect at the Reserved for acceptance) was adopted word for word in the new section 640 (3) of the German Civil Code (BGB) as part of the amendment to the law.
The legal acceptance is associated with the transfer of ownership and approval of the work.
Special features of the construction contract with VOB / B
The acceptance of the building by the customer must not be confused with the acceptance of the building by the responsible building supervisory authority . If, in the case of a construction contract, Part B of the procurement and contract regulations for construction services ( VOB / B ), i. H. of the “General Terms and Conditions for the Execution of Construction Works”, the provisions of the BGB are partially amended, in particular by VOB / B. There are the following similarities and differences:
- As in accordance with Paragraph 1, Clause 2 of the German Civil Code, acceptance can only be refused due to significant defects ( No. 3 VOB / B).
- In contrast to the BGB, the contractor is also entitled to partial acceptance ( No. 2 VOB / B).
- Within the framework of a VOB / B construction contract , the client is obliged to accept the goods within twelve working days of being requested to do so by the contractor ( No. 1 VOB / B). However, a different deadline can also be agreed.
- At the request of a contracting party , the acceptance according to No. 4 Paragraph 1 VOB / B must be carried out in a special form ( formal acceptance ). In the case of a formal acceptance, the building is inspected . Usually the client and the contractor are present. Each contracting party can call in an expert at its own expense. During the formal acceptance, an acceptance report must be drawn up, in which any reservations due to known defects and contractual penalties and any objections by the contractor to defects alleged by the client and requested contractual penalties are to be recorded.
- As with the sole application of the BGB, tacit acceptance is possible.
- In addition to Paragraph 1 Clause 3 BGB, VOB / B regulates details of the fictitious acceptance . If no formal acceptance is agreed in the contract and no acceptance is required by one of the contracting parties, the service is deemed accepted within twelve working days after written notification of the completion of the service ( No. 5 Paragraph 1 VOB / B) . If no acceptance is requested and the client has used the work or part of the work, the acceptance is deemed to have taken place six working days after the start of use. The use of parts of a structural system to continue the work does not count as acceptance ( No. 5 Paragraph 2 VOB / B).
- The risk of accidental loss or deterioration of the work is transferred to the client (transfer of risk) ( No. 6 VOB / B, but primarily VOB / B).
- The limitation period for claims for defects begins to run (start of the warranty period) ( No. 4 Paragraph 3 VOB / B).
- As in accordance with (3) of the German Civil Code (BGB), any contractual penalty forfeited can no longer be demanded from the client if he has not reserved this for himself upon acceptance ( No. 4 VOB / B).
A technical acceptance is a declaration by the customer or often his authorized architect that the work or a certain part is in accordance with the contract from a purely technical point of view. The burden of proof that the work is not in accordance with the contract in this respect is transferred to the customer, whereas the other effects of the acceptance do not occur. Technical approvals are often carried out during the construction period for parts that can no longer be checked later, e.g. B. the reinforcement of a reinforced concrete component. The contracting parties can agree to carry out technical acceptance tests; If the VOB / B has been agreed, the contracting parties are entitled, according to (10) VOB / B, to the determination of the status of parts of the service if these are hidden during subsequent work.
The entrepreneur can the architect's contract of other construction entrepreneur or other construction entrepreneurs a BGB According upon acceptance of the final performance partial acceptance require the previously rendered services.
Other areas of law
In accordance with (1) of the EEG, electricity grid operators must immediately physically purchase, transmit and distribute all electricity from renewable energies or mine gas that is sold in a form of sale in accordance with (1) EEG. Acceptance is to be understood here as takeover.
The acceptance can take place expressly and also through conclusive action , for example through the full payment of the remuneration. For this purpose, the behavior of the customer must express the approval of the work as essentially in accordance with the contract. In sales contract law, it leads to the transfer of ownership, in work contract law to the due date of the remuneration ( (1) BGB). The customer loses certain claims with regard to such defects, which he is aware of at the time of acceptance, but not reserved ( (3) BGB). The burden of proof for the existence of a defect rests with the customer after acceptance ( reversal of the burden of proof ), unless a reservation was declared upon acceptance. The purchaser loses the right to a contractual penalty incurred by the entrepreneur , unless a reservation was declared upon acceptance ( (3) BGB). The transfer of risk takes place upon acceptance of the work ( Paragraph 1 BGB), the limitation period begins with the acceptance ( BGB). If acceptance is not possible due to the nature of the work (e.g. intangible works such as theater performance, concert), the effects of the acceptance take effect upon completion ( German Civil Code).
- Johann Gottlob Klingner, Collections on Village and Building Rights , Volume I, 1749, p. 609
- Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 433 Rn. 43
- Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 433 Rn. 44
- Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, § 640 Rn. 2
- Article 1 of the law of April 28, 2017 ( BGBl. I p. 969 )
- OLG Munich , judgment of November 10, 2015, Az. 9 U 4218/14 Bau, full text = NJW-Spezial 2015, 716.
- BGH , judgment of February 20, 2014, Az.VII ZR 26/12, full text