Acceptance of work is a crucial stage in the construction industry, whether public or private.
It comes at the end of the works and is a fundamental legal act for both the project owner and the builder.
I. The reception, a key date not to be overlooked
Article 1792-6 of the French Civil Code defines acceptance as “the act by which the client declares acceptance of the work, with or without reservations”.
It can be carried out amicably, tacitly or judicially, but must always be pronounced by both parties.
Acceptance of work is an essential element for both the project owner and the contractor.
This date is the starting point for legal warranties:
- Guarantee of perfect completion (1 year).
- Biennial warranty (2 years).
- Ten-year warranty (10 years)
Ten-year liability for the most serious defects and the two-year “garantie de bon fonctionnement” (guarantee of good working order) for equipment items apply from acceptance.
Without this approval, insurance guarantees, notably ten-year insurance, cannot cover the company in the event of a claim.
Acceptance also transfers the risks associated with the work: once the work specified in the contract has been completed, the contractor hands over “the work” to the customer, who then assumes custody and risk.
Acceptance formalizes acceptance of the work, and purges any apparent defects not mentioned in the reservation.
Acceptance may be accompanied by reservations, in which case the professional will have to carry out the corrective work within a maximum of one year.
On the other hand, the absence of any reservations about apparent defects at the time of acceptance means that the company is under no obligation to take any action.
To avoid any difficulties of interpretation, reservations must be precise, particularly as regards their location.
Acceptance is therefore a crucial legal act that requires special attention.
II. The different forms of reception and their modalities
There are three main forms of acceptance: express, tacit and judicial.
1. Express acceptance
Express acceptance is formalized by a report dated and signed by the project owner and the builder. This document may include :
- Unreserved acceptance, which immediately releases the builder.
- Acceptance with reservations, obliging the builder to remove these reservations within an agreed timeframe.
2. Tacit acceptance
When no acceptance certificate is signed, tacit acceptance can be recognized when the client demonstrates unequivocal acceptance of the work.
It is up to the person claiming tacit acceptance to prove it.
As this is a case law creation, there are no strict conditions, but rather a case-by-case interpretation of the project owner’s unequivocal willingness to accept the work.
Thus, habitability, the taking of possession or the payment of bills are not, independently, decisive criteria for tacit acceptance: all that counts is the “unequivocal will” of the project owner.
Conversely, customer complaints about completing the work and refusal to pay invoices can rule out any willingness to accept the work.
Recently, the French Supreme Court (Cour de cassation) went further, establishing a presumption of tacit acceptance on the dual condition of taking possession and payment of the full price. Civ 3rd, Nov. 24, 2016, no. 15-25.415; Civ3rd Apr. 18, 2019, no. 18-13.734
In all cases, tacit acceptance must also be contradictory.
Practical tips:
In the absence of express acceptance, a number of problematic situations can arise.
Price disputes, such as refusal to pay the balance of the contract, may rule out tacit acceptance.
Similarly, in the case of tacit acceptance, the date of acceptance may pose a problem, particularly for the application of insurance cover.
What’s more, the question of reservations at acceptance can be a complex one for both the project owner and the contractor.
3. Judicial reception
In the event of disagreement between the parties, acceptance may be pronounced by a judge seized by the party with an interest in the matter, i.e. the project owner or the contractor.
This procedure is often used when :
- The client unjustly refuses acceptance.
- The book is in condition to be received despite minor defects.
According to case law, total completion of the work is not an imperative condition for judicial acceptance. Civ. 3e, Jan. 11 2012
To be able to ask the judge to pronounce acceptance of the work, the building must be in a condition to be accepted, i.e. actually habitable.
In principle, the date of judicial acceptance is set at the day when the work is in a condition to be accepted, which in the case of a dwelling corresponds to the moment when it was habitable.
Practical tips:
If the project owner refuses acceptance, the situation can quickly become deadlocked.
If the refusal is unjustified, the company will have to send a formal notice before considering a request for judicial acceptance to get out of such a situation.
On the other hand, the project owner may find himself in difficulty, notably when the company abandons the site or a company defaults, and partial acceptance may be envisaged.
It is then essential to draw up a “report” on the work still to be carried out and any defects in work already completed; this report can be used as a form of acceptance with reservations.
Here again, it is the unequivocal will of the project owner to accept the work in the state it was in that will be retained as the determining criterion for partial acceptance.
Jurisprudence has also accepted acceptance by lot, unless the work does not constitute independent phases or form a coherent whole.
III Case law examples
Tacit acceptance When work is carried out on an existing building, particularly for an extension, it is common for the project owner to still occupy the premises. Case law has ruled that the presence of the project owner does not give rise to a presumption of tacit acceptance on the basis of taking possession and payment of the price. Civ 3è, May 23, 2024, 22-22.938
Distinction between acceptance : case law makes a clear distinction between judicial acceptance, which requires proof of habitability, and tacit acceptance, which must result solely from the project owner’s willingness to accept the work. Civ 3è, June 6, 2024, 22-24.047
Site abandonment, a risky situation where a company placed under judicial liquidation is unable to complete its work. However, this situation merits particular attention: a bailiff’s report of unfinished work and the declaration of a claim by the client to record the cost of the work as a liability of the company are not sufficient to establish a presumption of tacit acceptance. Civ 3è, November 7, 2024, 23-13.283
Judicial acceptance without summons: a company requesting judicial acceptance of work after its completion does not have to summon the project owner: only the criterion of habitability must be taken into account by the judge to set the date for judicial acceptance. Civ 3è, September 19, 2024, 22-24.871 23-10.105 23-10.965
Recourse against another company A company may be held liable for faults committed by another company, or for which liability may be shared. In such cases, case law confirms that the limitation period for claims between builders is 5 years from the date of the writ of summons containing an application for an injunction in summary proceedings or on the merits. This excludes requests for summary expert appraisal and summonses simply extending the expert’s mission to new parties. Legal delays can have serious consequences, and it’s always best to act quickly. Civ 3è, December 5, 2024, n°23-15.701
In conclusion
Acceptance, whether express, tacit or pronounced by a judge, is a major element in works contracts.
It marks the end of the work and the transfer of responsibility from the builder to the client.
Without reception, insurance coverage may not cover a potential claim, placing the entire financial risk on the company.
Mistakes to be avoided, particularly when it comes to tacit acceptance, can have significant consequences for the project owner’s rights.
In the final analysis, the acceptance of work must be approached with rigor and care, to ensure that the rights of all parties involved are protected, and that the legal consequences are dealt with serenely.