The tacit acceptance of the work: a strict interpretation

Acceptance is an essential step in the construction operation, particularly because of the consequences attached to it : starting point of construction-specific guarantees, transfer of risks, end of contractual guarantees, purging of apparent defects.

It should be noted that, in parallel with the amicable acceptance and the judicial acceptance provided for by the Civil Code, the courts recognize the existence of a tacit acceptance.

The recognition of tacit acceptance requires proof of the client's unequivocal intention to accept the work, which results cumulatively from

• taking possession of the work,
• payment of the full price.

Thus, payment for the work is insufficient to demonstrate an unequivocal intention on the part of the client to accept it, in the presence of ongoing disputes regarding the quality of the work by the client. (Cass. 3rd^Civ ., March 24, 2016, No. 15-14.830)

Conversely, the High Court held, in a previously discussed decision , that tacit acceptance of a project cannot be declared due to partial payment for the work and the repeated refusal of the project owner to sign the certificate of completion. (Civ. 3rd^,16 Sept. 2021, No. 20-12.372)

This position is reaffirmed by the Court of Appeal of Poitiers in a judgment of January 11, 2022.

In this case, the first judges upheld the existence of a tacit acceptance of the roofing work, even though the amount for the work had not been paid in full and the client disputed the work carried out.

This judgment was overturned by the Court of Appeal on this point, which held that

"The partial payment made, the criticisms relating to the work made during the construction, then after the final invoice was issued, the report drawn up by an expert, Z… in the month following the invoice at the initiative of the owner, the repeated refusals to settle the contract, the proposal by X… to resume the work, a proposal not limited to finishing or completion work but equivalent to redoing a significant part of the work carried out, clearly demonstrate a refusal by the owner to accept the work, even with reservations.

The aforementioned elements preclude any tacit acceptance on July 15, 2013, the date which corresponds to the issuance of the invoice for the balance of the work by X…, an invoice which was partially paid.” (Poitiers Court of Appeal, January 11, 2022, No. 20/00588)

The solution is classic and, in our opinion, perfectly justified given the consequences attached to the reception.