Business Contracts

The project owner is obliged to take delivery of the thing and “receive” (sign for) the contractor's work. 

The obligation to take delivery, which only applies when the contract for services relates to a tangible object, consists of the physical act of the project owner collecting the object from the contractor, unless otherwise stipulated. Failure to meet this obligation is punishable by law. Wh …

Obligation to take delivery and acceptance of work

The project owner is obliged to take delivery of the thing and “receive” (sign for) the contractor's work. 

The obligation to take delivery, which only applies when the contract for services relates to a tangible object, consists of the physical act of the project owner collecting the object from the contractor, unless otherwise stipulated. Failure to meet this obligation is punishable by law. When the contract for services relates to a piece of furniture intended for shaping, repair or cleaning, the Law of 31 December 1903 relating to the sale of certain abandoned objects allows the contractor to apply to the courts to have objects not collected after a certain period of time  auctioned off, and thus to be paid, from the proceeds of the sale, for his services and any costs incurred in preserving the object. The owner may oppose the sale by serving a writ on the professional, with the proviso that such opposition automatically entails a summons to appear at the first hearing of the court which authorized the sale .

For the project owner, receipt of the work means accepting the work performed by the contractor. According to the preliminary draft of the law on special contracts, “presentation of the completed work to the customer obliges the latter to take receipt of it” , reception being understood as “the legal act by which the customer declares acceptance of the work, with or without any reservations” . By adopting the definition of the current Article 1792-6 of the Civil Code for building contracts , the preliminary draft is designed to generalize this definition to all other contracts, given that acceptance is an essential component of the contract for services, and that the work to be performed may relate to movable or immovable property.

While, in practice, when a contract for services relates to tangible movable property, delivery is the same as acceptance, case law distinguishes between the two when the contract relates to immovable property. According to the Court of Cassation, acceptance involves not only delivery of the work, but also approval of the work implemented by the project owner . Acceptance, which is the act by which the project owner declares his acceptance of the work, with or without reservations, is intended to confirm the parties' agreement that it conforms to the terms of the contract, whereas delivery, which is the act by which the builder places his co-contractor in possession of the building, is characterized by the actual handing over of the keys, and presupposes that any work that remains to be completed or taken over does not prevent him from living in the building under normal conditions . Acceptance may be complete or partial . Final acceptance of the work can only take place once the work has been completed and all defects have been rectified .

Acceptance has a number of consequences. Firstly, once the work has been finally accepted, the project owner is obliged to pay the price or balance of the price of the work carried out by the contractor . In the absence of acceptance, there can be no transfer of custody of the work and risks . In effect, in the absence of acceptance of the work, the burden of risk must be borne by the contractor, even if the destruction of the thing constitutes for him an unforeseeable and unavoidable case of force majeure . Furthermore, acceptance without reservations covers apparent defects of conformity . Acceptance of the work - with or without reservations - brings the contract to an end  and marks the starting point of the warranties owed by the contractor, by triggering the limitation periods for liability claims against the latter .

Acceptance can take various forms: express , tacit  or by the courts (judicial) . Tacit acceptance has given rise to a great deal of litigation. According to the Court of Cassation, the taking of possession only constitutes tacit acceptance if, after completion of the work, it indicates the project owner's approval . This taking of possession must be characterized by an unequivocal willingness on the part of the client to accept the work . Tacit acceptance is presumed when the taking of possession is combined with full payment of the work invoiced by the contractor . In the absence of amicable acceptance, a court order (judicial acceptance) may be issued if the work is in a condition to be accepted , i.e. if it fulfills its intended purpose, which does not rule out the existence of reservations .

Law of 31 December 1903, Art. 1: "Movable objects entrusted to a professional to be worked, shaped, repaired or cleaned, and pleasure boats and ships deposited with a professional to be repaired, maintained, preserved or kept, and which have not been removed within a period of one year, may be sold under the conditions and in the forms determined by the following articles. In the case of motorized land vehicles, two- or three-wheeled motorcycles or motorized quadricycles, the applicable deadline stipulated in the first paragraph is reduced to three months.

Cass. 3e civ, 9 May 1972, LawLex202300000668JBJ. See earlier Cass. 3e civ, 10 December 1970, LawLex202300000665JBJ, specifying in real estate construction matters, that during the construction of a building, custody of the land and buildings belongs to the contractor, this custody being returned or transferred to the owner of the land and project owner only after acceptance. See Preliminary draft reform of special contract law, Art. 1178, paragraph 3: “Unless otherwise stipulated, [acceptance] entails transfer of ownership and risks of the work”.

Cass. 3e civ, 19 February 1986, LawLex202200004167JBJ.

Cass. 3e civ, 20 January 1982, LawLex202200009741JBJ; December 16 1987, LawLex202200008814JBJ. See also: Preliminary draft reform of special contract law, Art. 1778: “Acceptance covers any apparent defect or lack of conformity which has not been the subject of reservations (...)”.

Cass. 3e civ, 6 September 2018, LawLex202200003859JBJ.

Preliminary draft of the law of special contracts, Art. 1178, paragraph 2

Preliminary draft of the law of special contracts, Art. 1175: “Express acceptance is adversarial. When acceptance is express, reservations must also be express”.

Preliminary draft reform of special contract law, Art. 1774, para. 2.

Preliminary draft reform of special contract law, Art. 1777.

Cass. 3e civ, 8 October 1974, LawLex202200003860JBJ.

Cass. 3e civ, 4 October 1989, LawLex202200007711JBJ, holding that the fact that the project owners took possession of the premises without drawing up a joint acceptance report does not suffice to characterize their unequivocal willingness to accept the work, and, consequently, that this taking of possession constitutes tacit acceptance.

Preliminary draft reform of special contract law, Art. 1172.

Cass. 3e civ, March 16 1994, LawLex202200007552JBJ. See Preliminary draft reform of special contract law, Art. 1176: “Acceptance may be tacit if there is an unequivocal will on the part of the client to accept the work. Taking possession of the work and payment of the balance of the price presume the customer's unequivocal will to accept it, with or without reservations”.

Cass. 3e civ, 12 October 2017, LawLex202200007845JBJ. See previously, Cass. 3e civ, 30 June 1993, LawLex202200007850JBJ: a court of appeal hearing an application for judicial acceptance must determine whether the work is in a condition to be accepted when possession is taken.

Preliminary draft reform of special contract law, Art. 1777: “Acceptance may be pronounced by a court, with or without reservations, if the work satisfies its intended purpose”.

Preliminary draft reform of special contract law, Art. 1774.

Civil Code, Art. 1792-6 para. 1: “ Reception is the act by which the project owner declares acceptance of the work, with or without reservations”.

CA Montpellier, 5 April 2012, LawLex202200004786JBJ.

For an application to the construction industry, Cass. 3e civ, 16 November 2010, LawLex202200007540JBJ. 

Cass. 3e civ, 15 November 1968, LawLex202200009607JBJ.

Cass. 3e civ, 8 October 1974, LawLex202200003860JBJ. The preliminary draft incorporates this jurisprudential solution in Article 1774: “Without reservation, [acceptance] renders the price, or the balance of the price, payable”.

Business Contracts

299. Obligation to take delivery and acceptance of work

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299. Obligation to take delivery and acceptance of work

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