False acceptance in case of notification of defects before the application for acceptance?

Since the reform of the Building Contracts Act and the new regulations accompanying dummy admission in § 640 para 2 BGB, it has been disputed whether the effects of acceptance also occur if the customer complained about defects prior to seeking acceptance. The Schleswig Higher Regional Court (judgment of December 10, 2021, Case No.: 1 U 64/20) commented on the requirement for mock admission.


In construction law, the concept of acceptance plays a central role. There is no legal definition of admission; Instead, German civil law presupposes the concept of acceptance. The Federal Court of Justice has defined acceptance as the physical acceptance of work, together with recognition of the work as essentially conforming to the contract.

Since acceptance has significant legal consequences, it is almost always the subject of legal disputes. The main effects of the decline are

  1. wages due date,
  2. The burden of proving the existence of defects is transferred to the customer;
  3. Warranty period begins;
  4. loss of contractual non-custodial penalties;
  5. Loss of unreserved claims if there are identifiable defects.

imaginative acceptance

With the new Building Contracts Law effective January 1, 2018, the Legislative Council has passed its own regulations
The so-called “mock admission” changed. Pursuant to Article 640 Paragraph 2 BGB, a work is deemed to have been accepted (with all the resulting legal consequences) if the contractor gives the customer a reasonable deadline for acceptance after the work has been completed and the customer does not accept acceptance within this period, providing at least for the refusal due to a defect.

Thus, it is up to the customer to prevent the effects of acceptance if the work is defective from his point of view. He must actively refuse to accept, citing at least one defect.

Regulation § 640 Paragraph 2 BGB aims to prevent the client from preventing acceptance (and thus unfavorable legal consequences for him) unilaterally and without giving reasons.

Because of the far-reaching consequences, the consumer protection legislature has regulated that the legal consequences of a dummy acceptance only occur if the entrepreneur informs the customer with an acceptance application the consequences of an acceptance that is not declared or is rejected without showing defects. This notice shall be in textual form, see Section 640 Paragraph 2 Sentence 2 BGB.

What applies if the customer complained of defects before the application for acceptance and remained inactive after the application for acceptance?

This question has been controversial so far. It was said that the illusion does not occur if the customer has previously seriously and definitively refused to accept it and has complained of at least one defect. According to another opinion, dummy acceptance can also be assumed if the customer has already given notice of defects before the end of the acceptance period. OLG Schleswig convincingly follows the second viewpoint.

The decision was based on the following facts:

The client assigned the contractor to carry out the painting works. After the work was completed, the client complained about the work. Also, according to the court, the service was partially inadequate, since the defects turned out to be of minor importance and the cost of their removal was manageable. The contractor promised to carry out corrective work, but then did not perform them.

After a few months, the contractor asked the client to allow him the pending repair work. At the same time, the contractor set a deadline for accepting the work performed and issued a final invoice.

In legal proceedings, the contractor demanded payment of wages.

to make a decision

The Schleswig Higher Regional Court decided mainly in favor of the litigation contractor. In the opinion of the court, a dummy admission according to § 640 Paragraph 2 BGB also occurs if the customer only complains of defects in work before the deadline for acceptance is set. This applies in any case if the contractor was not aware of any significant defects in the work.

As justification, the Court uses the legislative intent in the new version of § 640 para 2 BGB. The new version was made to remove weaknesses in the old version of Article 640 paragraph. 1 sentence 3 BGB. Accordingly, dummy acceptance occurs if the client does not refuse the acceptance within a period of time if he is bound to accept. Controversy persisted over whether the work was ready for acceptance by the time the deadline was set (as a prerequisite for mock admission) and had to be clarified in each case as part of the process. The intent of the legislature in the new regulation of dummy admission was to create clarity as quickly as possible as to whether or not the effects of admission had occurred. However, this legislative objective can only be achieved if the customer must always respond within the deadline set by the contractor, even if he has already provided notice of defects prior to the request for acceptance.

It is not unreasonable for a customer to repeat a complaint that has already been made. From the contractor’s point of view, it is not a contradiction to set a deadline according to Article 640(2) of the German Civil Code despite the complaints already made. On the one hand, there may be disagreement about the question of whether the defects complained of even exist and whether they are necessary (and thus stand in the way of acceptance). On the other hand, the notice of defects can also become obsolete over time, for example if rework is performed or no defects can be demonstrated.

A request for acceptance can only be offensive if the entrepreneur knows that his work has significant flaws. In this case the effects of fantasy will not occur.

Right to retain in case of presumption of acceptance despite defects

In the opinion of the Schleswig Higher Regional Court, the customer in the case identified here has the right to retain due to residual defects, §§ 641 para 3, 320 para 1 BGB. The contractor can only claim a portion of the wages raised in exchange for the correction of identified defects.

According to Sections 641, Paragraph 3, 320, Paragraph 1 of the German Civil Code, the customer may refuse to pay an appropriate part of the wages if he can claim the repair of defects. As a rule, twice the expected cost of repairing the defect (the so-called “extra printing cost”) is appropriate. Since the customer was in default of acceptance in the present condition, the right of retention exists only to the extent of the small amount of the expected costs of repairing the defect.


If the entrepreneur asks the client to accept his work, setting a reasonable deadline, then the client must refuse to accept, stating at least one defect – provided that the work is defective. This also applies if he had already refused admission before the application for admission, citing at least one defect. Without (renewed) refusal to accept The work is considered accepted after the deadline.

Attorney Jochen Wollstein

Bahr & Wöllstein – Notaries and lawyers

Friedrichstrasse 6 65185 Wiesbaden

Tel: 06111557599 0

m info@bwnotar.de

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