Construction law hinges on acceptance of work, determining liability and guarantees. Courts navigate explicit, implicit, and judicial acceptance with strict procedural rules.
Acceptance in construction law
The acceptance of construction work is a key element in construction law, as it marks the beginning of legal protections and triggers a ten-year liability period for defects. This step is crucial for determining when responsibilities shift from the contractor to the project owner.Legal process for acceptance
Under the Civil Code, acceptance is defined as the project owner's declaration of approval for the work, either with or without reservations. This process can be initiated by the more diligent party, either through mutual agreement or, if necessary, through a judicial procedure. Importantly, the acceptance must occur in an adversarial process, meaning both parties must be involved, even if not physically present.Guarantees and repairs
The contractor is legally bound for one year after acceptance to repair any defects identified by the project owner. These defects can be noted in the acceptance report or communicated later in writing. The time needed for repairs is agreed upon by both parties. If no agreement is reached or if the contractor fails to act, the project owner may proceed with repairs at the contractor’s expense and risk.Adversarial process requirements
The adversarial process requires that the contractor be invited to participate in the acceptance, even if they are not physically present or agree to the acceptance. A 2019 court decision emphasized that acceptance can be considered adversarial even in the contractor’s absence, as long as they were properly notified.Judicial acceptance rules
Judicial acceptance involves the participation of the relevant companies and does not require an amicable acceptance. It must be declared on the date the work is ready to be accepted. For a residential house, this date is determined by when the property became habitable, regardless of the project owner's willingness to accept it. Courts have stressed that summoning the relevant companies is essential, even if their insurer is present.Implicit acceptance and legal challenges
Implicit acceptance occurs when the project owner’s actions—such as taking possession or making payments—suggest an acceptance of the work. However, this type of acceptance is considered an exception to the general requirement of an adversarial process. The Court of Cassation has noted that while implicit acceptance can be recognized, it must be carefully proven through evidence like correspondence and payments. This raises questions about how to fully align such recognition with the legal requirement for an adversarial process.
