Acceptance of a work may not be refused due to insignificant defects (Section 640 (1) sentence 2 BGB, Section 12 (3) VOB/B). There is no statement in the relevant standards regarding the required degree of completion of the work as a prerequisite for acceptance.

However, the question of what degree of completion the work must have reached in order to be considered ready for acceptance is very important, particularly in the case of plant construction, which is usually very complex. This is because, from a strict point of view, complete completion is unlikely to be achievable due to the technical complexity of many plant construction projects or, from the plant constructor’s point of view, will only be achieved at a point in time that is hardly acceptable.

The following article provides information on the extent to which the degree of completion affects the right to acceptance.

Principle: Acceptance only when the work is fully completed and finished

In private construction law, the principle applies that acceptance can only be considered if the work is fully completed and finished on the acceptance date.

Restrictions of this principle by supreme court rulings

In some older decisions, the BGH expressly differentiated between a defective and an unfinished work. According to the BGH, acceptance could only be considered when the work is completed, even if it still has defects (BGH NJW 1964, 647; BGH NJW 1979, 650).

On the other hand, the BGH had already determined at that time that, although acceptance could only be considered upon completion, it was nevertheless possible if individual services were still outstanding (BGH BauR 1973, 192).

In more recent decisions, the BGH has become clearer. In its opinion, it does not prevent the contractor from demanding acceptance if insignificant remaining work is still missing, which is irrelevant for the customer’s decision as to whether he wishes to accept and approve the performance as fulfillment (BGH NJW 2000, 2818, 2819). Outstanding minor remaining work that is insignificant for the usability of the work would not prevent acceptance.

In the literature, it is also generally assumed that the contractor’s claim is not precluded by the fact that insignificant remaining services are still missing, which are insignificant and unimportant for the client’s decision as to whether he wants to accept and approve the service as fulfillment.