Plant construction & building law

Case study – Plant construction & building law

1) The case

What it’s all about

Acceptance is blocked, €1.5 million is at a standstill. The customer labels subsequent requests as “defects”. I draw a clear line between the agreed quality and the wish list, present a court-proof inspection program, base the acceptance on this and secure the facts – this is how we open the way to payment.

The case

On March 10, 2024, a beverage manufacturer orders a turnkey filling/packaging line for €8 million. Core of the specification: 24,000 bottles/hour at 0.5 l. The format window, permitted rejects, maximum changeover times and boundary conditions remain open. Acceptance has been agreed, a binding test program is missing. An advance payment of €1.5 million is expressly linked to successful acceptance.

During commissioning, the peak capacity is only reached for a short time; with the 0.33 l format, it is significantly lower. Changeover times are longer than expected; data evaluation is incomplete. The customer demands additional buffers, higher-quality components and special evaluations, treats this as owed and complains of “defects”. An acceptance run without a clear standard fails. The customer refuses acceptance and asserts counterclaims > € 1.5 million:

• 300,000 € Contractual penalty Default
• 400,000 € contractual penalty Failure to achieve performance
• 1,000,000 € operating loss (plus other items)

Stalemate.

2) How I help the plant manufacturer

I prepare the contract and project documents in such a way that the quality, boundary conditions and subsequent requirements are clearly separated. Based on this, I offer a test and acceptance program in writing: two reference formats (0.5 l/0.33 l), defined running time over several shifts, limit values for faults, rejects and changeover times, defined material/media qualities, clear protocol form. At the same time, I declare readiness for acceptance and set a deadline for implementation.

If the deadline expires without a specific, significant notification of defects, acceptance shall be deemed to have taken place (fictitious acceptance in accordance with Section 640 (2) BGB). Insignificant points do not prevent acceptance; where separable, I demand partial acceptance on the due date. At the same time, I secure statuses, protocols, running/downtimes, configurations and documented test runs. If there is a risk of loss of information or if a neutral finding is crucial, I specifically request an independent evidence procedure – either to secure the current system status or as neutral proof of performance under precisely this program. For the cash flow, I prepare the claim: primarily for payment of the acceptance rate (ready for acceptance or fiction), alternatively for execution of the acceptance; depending on the situation, parallel to the evidence proceedings. I attribute the counterclaims to their prerequisites: lack of agreed standard, own lack of cooperation, causality, mitigation of damages. Requests without a contractual basis are not a defect and are only to be carried out against payment with an extended deadline.

3) Result

We enforce a verifiable acceptance or its fiction, achieve (partial) maturity and thus the payment flow of € 1.5 million, while excessive counterclaims shrink to what is legally viable: I completely defend against business interruption damages – they regularly fail to demonstrate causality and the obligation to mitigate damages; without an agreed performance standard, there is also no basis. Contractual penalties are omitted or reduced to a minimum due to the lack of a viable standard and the customer’s failure to cooperate.