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Façade coating acceptance: BGB, VOB/B, deadlines and records

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Acceptance changes several things at once. Payment falls due, the limitation period for defect claims starts to run, under the VOB/B (the German General Contract Conditions for Construction Works) the risk passes to the client, and according to the IHK (Chamber of Industry and Commerce) the burden of proof for defects then lies with the customer. With a façade coating there is the added difficulty that the condition of the substrate, layer thicknesses and the weather during application can hardly be checked once the work is finished. What counts later is what is in the record.

Two sets of rules, two routes to acceptance

The BGB (German Civil Code) always applies; the VOB/B only if it has been agreed. The table compares what is relevant for the acceptance of a coating service (VOB/B in the 2016 version).

Point BGB VOB/B
Duty to accept § 640(1): The customer must accept the work if it has been produced in accordance with the contract; acceptance may not be refused because of non-material defects § 12(3): Acceptance may be refused until remedied because of material defects
Request for acceptance After completion, the contractor sets a reasonable period (§ 640(2)) § 12(1): The client carries out acceptance within 12 working days; a different period may be agreed
Deemed acceptance § 640(2): The work is deemed accepted if the customer does not refuse acceptance within the period, stating at least one defect; for consumers only if the contractor has pointed out the consequences in text form § 12(5): The work is deemed accepted 12 working days after written notice of completion if no acceptance is requested; if the work is put into use, after 6 working days
Formal acceptance According to the IHK, a record is advisable for more extensive works § 12(4): It must take place if a party requests it
Known defects § 640(3): Rights under § 634 nos. 1 to 3 are preserved only if they are reserved at acceptance § 12(4) and (5): Reservations are to be included in the minutes or asserted at the latest by the relevant deadlines
Limitation of defect claims § 634a: five years for a structure, two years for the production, maintenance or alteration of a thing; starts with acceptance § 13(4): Without a contractual period, four years for structures, two years for other works; starts with acceptance of the entire work

Whether a façade coating counts as work “on a structure” and therefore falls under the longer period depends on the individual case and cannot be answered from the wording of the statute alone. The periods in § 13(4) VOB/B apply only if the contract does not specify a limitation period; anyone who wants to rely on a particular period should therefore regulate it expressly.

What happens on acceptance

  • Payment: It is to be made on acceptance (§ 641(1) BGB); remuneration fixed in money bears interest from acceptance unless it has been deferred (§ 641(4)).
  • Risk: Under § 12(6) VOB/B, the risk passes to the client on acceptance, insofar as the client does not already bear it under § 7.
  • Limitation: The period starts with acceptance. For fraudulently concealed defects the regular limitation period applies, but for structures not before the five years have expired (§ 634a(3) BGB).
  • Later complaints: Under § 13(5) VOB/B, the contractor must remedy at its own cost any defects that appear during the limitation period and are attributable to non-conforming performance, if the client requests this in writing before the period expires.

If acceptance is refused

In the case of a construction contract within the meaning of § 650a BGB, the contractor may, after acceptance has been refused with defects stated, demand a joint determination of the condition of the work (§ 650g(1)). A construction contract is a contract for the construction, reconstruction, removal or conversion of a structure; maintenance counts as such if the work is of essential importance for the structure, its continued existence or its intended use. Whether a façade job falls under this is a question for the individual case.

The determination of condition is to be dated with the day on which it is drawn up and signed by both sides. If the customer fails to attend the appointment, the contractor can carry it out unilaterally. Important for the contractor is § 650g(3): if an obvious defect is not stated in the determination of condition, it is presumed to have arisen afterwards and to be the customer’s responsibility.

What belongs in the acceptance record

In § 12(4), the VOB/B describes formal acceptance: the findings are set down in writing at a joint meeting, each party may call in an expert at its own cost, and each party receives a copy. Together with § 650g BGB, this gives the following content:

  • Property, date (day on which it is drawn up), participants and any experts called in
  • Work accepted: façade elevations or areas; in the case of partial acceptance (§ 12(2) VOB/B), the parts concerned
  • Findings and list of defects with location and description
  • Reservations regarding known defects and contractual penalties
  • Objections of the contractor
  • Signatures of both sides

The application record as evidence

The provisions cited do not require a separate application record; it is a working recommendation. It is worthwhile because under § 13(1) VOB/B the work is free of defects if it has the agreed quality and complies with the generally recognised rules of technology, and because under § 4(1) no. 2 the client may demand to see the results of quality tests. A complete record answers both.

  • Substrate inspection with findings and method, notifications of concerns with date (see Checking the substrate under VOB and BFS)
  • Product, container or batch number, consumption per area, version of the data sheet
  • Conditions for each work step: date, time, air temperature, surface temperature, relative humidity, dew point
  • Method of application, number of coats and waiting times between coats
  • Weather after application (rain, dew), interruptions and notifications
  • Photos with date and façade elevation

How to read the data sheet information that is cross-checked in the record is described in the article Reading the data sheet: V and W classes.

Deadlines in the calendar

The date of acceptance is the starting point for all deadlines (§ 634a(2) BGB, § 13(4) no. 3 VOB/B). It therefore belongs in the record, as does any partial acceptance, because for self-contained parts the period starts with the partial acceptance. In practice it is often unclear whether acceptance took place expressly or by deemed acceptance. A signed record replaces this point of dispute with a date.

Sources

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