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 |  Dennis Wiegard

Defects during the construction phase? Principles of liability for work contracts before acceptance

Defects occur during the construction of (building) works. This is common, humanly and usually hardly to prevent. Often the deficiencies are of a minor extent, so that it is possible to find a mutually agreeable and for all parties reasonable solution to eliminate the deficiencies. If the deficiencies are larger, you should contact us as soon as possible and get advice during the construction process.

However, it would be good for you as a client /builder-owner to know which defect rights according to § 634 BGB you are entitled to before acceptance of the work?

Defect rights according to § 634 BGB can only be asserted with success after acceptance of the work. Accordingly, the point in time at which the freedom from defects is assessed is the acceptance (caesura). Until acceptance, contractors are free to choose how the claim to faultless production is fulfilled. The term "subsequent performance" already indicates that §§ 634, 635 BGB (German Civil Code) are rights after the work has been completed.

The commencement of the limitation period for rights in respect of defects shall also generally take place upon acceptance.

Are there no exceptions? Are clients placed unprotected before acceptance?

There are exceptions. In the case of building contracts according to the VOB/B (German Construction Contract Procedures), all claims, in deviation from the law, already exist before acceptance. For example, the moment of acceptance is no longer relevant if the client and the contractor go their separate ways and the original contractual relationship has changed into a settlement relationship (see BGH, judgments of 19.01.2017 Az. VII ZR 301/13; VII ZR 235/17). At this point everything is "only about the money" and no longer about the performance of the work.

Of course, clients are not without protection before acceptance. They just cannot set a deadline for the removal of defects before the deadline for completion of the work has expired. After the completion period has expired, clients can assert their claims (damages, withdrawal, etc.) in the normal way via the general law of obligations (§ 280 ff. BGB). We will be happy to help you with this.

A further exception is derived from § 323 Abs. 4 BGB. According to this, clients can demand the removal of defects even before the due date of the claim for performance if it is obvious that the conditions for withdrawal will be met. In practice this would be the case if the contractor refuses to remedy the defects and the defects are therefore inevitably not remedied even after the claim is due. It may also be necessary to remedy the defects immediately because the construction project is otherwise seriously disrupted and contractors cannot be expected to allow the damage to occur (justified indication of urgency).

After acceptance, the warranty regime of § 634 ff. BGB would have to be applied.

Your interests can therefore be safeguarded at any time during the production of the work.

Author: Lawyer Dennis Wiegard


Düsseldorf, October 14, 2020

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