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Tacit acceptance of works: conditions, proof and consequences

Acceptance is a crucial step in the execution of a construction contract. It marks the client's acceptance of the work and triggers the main legal guarantees owed by the contractors.

In practice, however, no formal acceptance report is ever drawn up. The owner takes possession of the premises, pays for all or part of the work, and begins to use the property without a formal acceptance ceremony having been organized.

A tacit acceptance of the work may then be recognized. However, it does not automatically result from the completion of the construction site or the occupancy of the premises. It requires demonstrating the client's unequivocal intention to accept the work, with or without reservations.

This question is essential when defects appear and the client wishes to hold the builder liable or invoke their ten-year warranty insurance.

What is the reception of a work?

Article1792-6 of the Civil Code defines acceptance as the act by which the client declares that they accept the work, with or without reservations.

She can intervene:

• amicably, by signing a report;
• Legally, when a disagreement prevents an amicable settlement;
• tacitly, when the client's behavior unequivocally reveals their willingness to accept the work.

Tacit acceptance is therefore not expressly mentioned in Article 1792-6 of the Civil Code. However, its existence has long been recognized by case law.

In principle, it produces the same effects as an express acceptance. The difficulty lies in determining whether the actions taken by the client truly reflect an intention to accept the work.

What are the conditions for tacit acceptance of the work?

Tacit acceptance is based on a central criterion: the unequivocal will of the client to accept the work.

This willingness is assessed based on a set of indicators. Two elements are particularly important:

• taking possession of the work;
• payment for the work.

The combination of these two elements generally creates a presumption of the client's unequivocal intention to accept the work. This presumption, however, remains simple: it can be overturned by circumstances demonstrating that the owner did not intend to accept the work.

In a ruling dated April 18, 2019, the Court of Cassation thus recalled that taking possession of the work and paying for the work give rise to a presumption of the unequivocal intention of the project owner to accept them with or without reservations.

Tacit acceptance must therefore be assessed in light of the overall behavior of the parties and not on the basis of a single isolated fact.

Is taking possession sufficient to characterize tacit acceptance?

The mere occupation of the premises is not necessarily sufficient to demonstrate the existence of tacit acceptance.

Taking possession is an important indicator when the building owner enters a newly constructed building, moves in, or begins operating the premises. However, it must be considered in conjunction with other circumstances in the case.

Tacit acceptance may be discussed, in particular, when the project owner:

• occupies the premises while immediately denouncing significant defects;
• asks the company to complete the work;
• refuses to pay a significant portion of the price;
• address of formal notices to the manufacturer;
• requests an expert opinion before any actual use of the work;
• brings in another company to take over or finish the construction project.

These behaviors may reveal that the owner did not intend to accept the work in the condition it was in.

Conversely, the sustainable use of the premises, the settlement of the market, the absence of dispute for a significant period or the commissioning of the work can contribute to characterizing a tacit acceptance.

Work in an occupied building: special vigilance is required

Taking possession is more difficult to characterize when the work has been carried out in a building that the client already occupied.

In this situation, the owner cannot truly "enter" the premises after the work is completed, since he was already there beforehand. His continued presence in the building therefore does not, in itself, demonstrate that he has accepted the work.

The Court of Cassation expressly specified this in a ruling of May 23, 2024 : in the case of work on an existing structure, the taking of possession allowing the presumption of acceptance cannot result solely from the fact that the project owner already occupied the premises.

It is then necessary to look for other manifestations of his will, for example:

• the recommissioning of the installation concerned;
• the effective use of the newly installed equipment;
• the use of renovated spaces;
• the payment of invoices;
• the absence of any complaint upon completion of the work;
• carrying out a site survey or a final site visit;
• the exchanges that took place with the company.

This detail is particularly important for renovation, rehabilitation, heating, roofing or development work carried out in dwellings or professional premises that remained occupied during the construction.

Is full payment for the work essential?

Payment of the price is a determining indicator, but it does not, in itself, constitute tacit acceptance.

Full or near-full payment for the work, combined with taking possession, creates a presumption of acceptance of the work. However, the judge must examine the context in which the payment was made.

Thus, payment of an invoice may not necessarily reflect acceptance of the work when the client:

• simultaneously denounced the disturbances;
• formulated specific reservations;
• requested the completion of the construction project;
• paid under pressure from a formal notice;
• expressly contested the conformity of the work.

Conversely, the absence of full payment does not systematically preclude tacit acceptance. The retention of a limited sum corresponding to a guarantee deposit, specific reservations, or a one-off disagreement does not necessarily preclude the intention to accept the essential elements of the work.

It is up to the judge to assess whether the non-payment reflects a general refusal to accept the work or whether it corresponds only to specific reservations.

Full payment should therefore not be considered an automatic condition, but rather one of the main elements of evidence of tacit acceptance.

Are reservations compatible with tacit acceptance?

Acceptance, whether express or tacit, may occur with or without reservations.

The existence of defects does not necessarily preclude tacit acceptance. However, it remains to be determined whether the client accepted the work while retaining the right to demand that certain defects be rectified.

Reservations may arise from letters, emails, site reports, annotated photographs, observations or requests for rework addressed to the company.

The date of these claims is crucial.

Protests made before or at the time of taking possession can demonstrate:

• either the client refused any acceptance;
• either he accepted the work with specific reservations.

On the other hand, defects reported only after acceptance may, depending on their nature and severity, fall under the guarantee of perfect completion, the guarantee of proper functioning, the ten-year guarantee or the contractual liability of the builder.

It is therefore essential to accurately reconstruct the chronology of the construction, payments, taking possession and the first claims.

Is tacit acceptance possible in the event of abandonment of the construction site?

The abandonment of the construction site by the company does not automatically result in the acceptance of the work already completed.

The project owner may take possession of the structure or bring in a new contractor to prevent the situation from worsening. These precautionary or practical measures do not necessarily imply acceptance of the work carried out by the defaulting contractor.

A tacit acceptance may nevertheless be recognized if the client clearly expresses his intention to accept the work as is, possibly with reservations, before entrusting its completion or resumption to a third party.

In this type of case, it is recommended to have a joint report or a report from a bailiff drawn up stating:

• the progress of the construction site;
• the work carried out;
• the work remaining to be done;
• the apparent defects;
• the materials and equipment present on site;
• the date on which the company left the construction site.

The absence of express or tacit acceptance can have significant consequences on the mobilization of the builder's ten-year liability insurance.

Why is the date of receipt so important?

Acceptance marks the starting point for legal construction guarantees.

The following events, in particular, begin to run from that date:

• the guarantee of perfect completion, for one year;
• the guarantee of proper functioning, for two years;
• the ten-year warranty, for ten years.

The acceptance process also helps to determine the legal framework applicable to any defects.

Before acceptance, defects in workmanship fall primarily under the general contractual liability of the contractor. After acceptance, defects may be covered by the legal guarantees provided for in Articles 1792 et seq. of the Civil Code, provided that the relevant criteria are met.

The existence and date of acceptance are also crucial for triggering the ten-year structural warranty. An insurer may contest its guarantee by arguing that the work was never accepted or that the defects were apparent and were not noted.

The analysis must therefore focus both on the rules governing acceptance and on the content of the insurance contract. To delve deeper into this second aspect, our article on exclusion clauses in insurance outlines the conditions under which an insurer can invoke an exclusion of coverage.

Who has to prove tacit acceptance?

It is up to the party alleging the existence of tacit acceptance to provide proof thereof.

Depending on the situation, it could be:

• of the project owner who wishes to invoke the ten-year warranty;
• from the builder who intends to argue that the work has been accepted;
• of the insurer who invokes the receipt to determine the regime applicable to the claim;
• from the insurer who, on the contrary, contests any acceptance in order to dismiss its ten-year guarantee.

Evidence can be presented by any means. The most useful documents include:

• quotes and work contracts;
• invoices and proof of payment;
• the minutes and site reports;
• emails exchanged with the company;
• formal notices;
• dated photographs;
• the findings of the judicial commissioner;
• the certificates;
• amicable or judicial expert reports;
• documents establishing the date of occupation or commissioning of the premises.

Tacit acceptance is a matter for the judges of the lower courts to assess. Two seemingly similar cases may therefore receive different outcomes depending on the evidence presented and the established chronology.

Tacit acceptance or judicial acceptance: what's the difference?

When the unequivocal intention of the client cannot be established, a judicial acceptance may be requested.

Judicial acceptance is not based on the owner's intention to accept the work. The judge primarily examines whether the work was, on the proposed date, in a state to be accepted, that is to say, sufficiently completed to be used in accordance with its intended purpose.

It can be pronounced with reservations and set for a date determined by the court.

Judicial reception can therefore be a solution when:

• the company refuses to organize the reception;
• The construction site is closed;
• the parties disagree on the state of completion;
• No sufficiently clear tacit intent can be demonstrated.

However, it should not be confused with a request simply seeking to acknowledge a tacit acceptance that has already occurred.

How to ensure the safe acceptance of the work?

Tacit acceptance often serves as a remedy when the parties have not formally acknowledged the completion of the project. However, it remains a significant source of uncertainty and disputes.

The best practice is to organize a formal and contradictory reception.

The official report must include, in particular:

• the date of receipt;
• the identity of the parties present or summoned;
• the works and lots concerned;
• the reservations expressed;
• the deadlines granted for their lifting;
• any documents that still need to be submitted;
• the client's position on the acceptance.

In the event of significant problems or site abandonment, it is best not to sign any document without considering its consequences. The wording of the reservations and the date chosen can affect legal recourse against the contractor and its insurer.

What should we remember about the tacit acceptance of the work?

Tacit acceptance is accepted when the behavior of the client reveals his unequivocal intention to accept the work, with or without reservations.

Taking possession and paying the price are the main indicators of this intention. However, they should not be examined in isolation.

It is important to remember that:

• Simply occupying the premises is not always enough;
• In a building that is already occupied, remaining on the premises does not constitute taking possession;
• Full payment of the price is not necessarily sufficient on its own;
• Failure to pay the balance does not automatically preclude receipt;
• Disorders may be compatible with acceptance subject to reservations;
• Abandonment of the construction site does not constitute automatic acceptance;
• The party invoking tacit acceptance must provide proof thereof;
• The chosen date determines the starting point of the legal guarantees.

ARST Avocats assists companies, builders, owners and stakeholders in the real estate in disputes relating to works, defects, builders' liability and insurance guarantees.

Morgan Jamet,
Partner Attorney – ARST Avocats