The tacit acceptance of the work: a strict interpretation

Acceptance is an essential stage in the construction operation, in particular because of the consequences attached : starting point for guarantees specific to the construction, transfer of risks, end of contractual guarantees, clearing of apparent disorders.

It should be remembered that alongside amicable acceptance and judicial acceptance provided for by the Civil Code, the courts recognize the existence of tacit acceptance.

Recognition of tacit acceptance presupposes that the unequivocal will of the contracting authority to accept the work which results cumulatively from

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

Thus, the payment of the amount of the works is insufficient to demonstrate an unequivocal will of the contracting authority to take delivery, in the presence of permanent dispute of the quality of the works by the contracting authority. ( Cass. 3rd ^civ ., March 24, 2016, n°15-14.830)

Conversely, the High Court considered, in a decision already commented on , that the tacit acceptance of a work cannot be pronounced because of the partial payment of the works and the repeated refusal of the contracting authority to sign the certificate of their good completion. . ( Civ. 3 ^rd , Sept. 16, 2021, No. 20-12.372 )

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

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

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

"The partial payment made, the criticisms relating to the work formed during the construction, then after issuance of the final invoice, the report carried out by an expert, Z... in the month following the invoice on the initiative of the master of the work, the repeated refusals to settle the contract, X's proposal 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 demonstrates a refusal by the contracting authority to take delivery of the works, albeit with reservations.

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

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