Particularly in the case of complex (plant) construction projects, the contracting parties often agree – usually on the basis of the VOB/B – to carry out a so-called formal acceptance. The acceptance of a work performance means the recognition of the work as being essentially in accordance with the contract. Acceptance is particularly important in construction law. It is associated with considerable legal consequences, such as

• the transfer of risk,
• a reversal of the burden of proof with regard to the existence of defects and
• the end of the fulfillment stage.

In addition, a significant part of the remuneration claim regularly requires prior acceptance.

The following article deals with the question of what such a formal acceptance is actually all about.

The essence of formal acceptance

The central feature of formal acceptance is that the parties have expressly agreed on the receipt of a corresponding declaration of intent requiring receipt as a declaration of acceptance.

Statutory and/or contractual acceptance requirements irrelevant if formal acceptance is agreed

In the event of an agreement on express acceptance (formal acceptance is a special form of express acceptance), the statutory and/or contractual acceptance requirements are not a prerequisite for the effects of acceptance to occur.

The customer is therefore free to accept a work even if the conditions for acceptance, i.e. readiness for acceptance, are not met (examples: work still incomplete, significant defects, etc.).

Other forms of acceptance (initially) excluded

Acceptance is generally possible in various ways. For example, acceptance can also take place implicitly (through conclusive behavior) or by the contractor not accepting the work despite proper completion of the work and an unsuccessfully set deadline for acceptance (so-called fictitious acceptance).

The agreement to carry out a formal acceptance then (initially) means that other forms of acceptance are excluded.

Carrying out the formal acceptance

There are no mandatory (legal) requirements for formal acceptance. However, it follows from the fact that formal acceptance requires the receipt of a corresponding express declaration of acceptance that a – not mandatory – joint acceptance meeting regularly takes place for the purpose of formal acceptance, the results of which are recorded in a protocol.

Formal requirements – minutes are sufficient

The declaration of acceptance can be made by the customer to the contractor in writing or verbally (also) independently of the preparation of a written record.

The formal requirements of formal acceptance are therefore satisfied in any case with the preparation of a protocol. Signatures under the minutes are therefore not required for the effectiveness of the acceptance and the occurrence of the acceptance effects, but are recommended.

Important: Subsequent waiver of formal acceptance possible

As already mentioned, the agreement of a formal acceptance means that other forms of acceptance are generally excluded. However, this only applies “initially”, because even if formal acceptance is contractually agreed, formal acceptance may be subsequently waived, either expressly or impliedly.

This may be the case, for example, if the client accepts the work without comment for several months or if, after a corresponding period of use of the work, it can no longer be expected that the client will demand formal acceptance after all(Havers, loc. cit., cf. also Keine in: Bock/Zons, Rechtshandbuch Anlagenbau, Part B, VII Acceptance, para. 42; Hilger/Kaminsky, Anlagenbau im In- und Ausland, para. 434).

The OLG Bamberg states in this regard:

“According to the prevailing opinion in case law and literature, acceptance by conclusive action through putting into use by the client (sic!) in accordance with § 12 No. 5 VOB/B even in the case of a formal acceptance agreement in the contract, if it can be established that the parties have waived the agreed acceptance by conclusive conduct (BGH NJW 93, 1063) (…)”. (OLG Bamberg, judgment of May 5, 1997 – 4 U 188/96 -, para. 9, juris)

The problem here is that, in contrast to conceivable fictitious acceptance by commissioning, where acceptance is fictitious regardless of the will of the client, tacit acceptance as a declaration of intent by the client presupposes a corresponding will to accept.

The BGH explains:

“In order to assume a tacit acceptance of work, however, facts must be established from which it is unambiguous that the parties have waived the agreed formal acceptance of work by conclusive conduct.” (BGH, judgment of 03.11.1992, ref.: X ZR 83/90 – this also concerned plant construction, EDP system)