Acceptance of the works, what French law calls the réception, is the only act that starts the statutory construction warranties running. Until it has taken place, the contractor remains bound to deliver works that conform to the contract. Once it is pronounced, apparent defects that were not reserved can no longer be pursued, and the one year, two year and ten year clocks all start on the same day.
What acceptance is, and what it is not
Many employers believe acceptance is an end of site formality, a courtesy visit before moving in. It is the opposite. Article 1792-6 of the Civil Code makes it the act by which the employer declares that he accepts the works, with or without reservations. It is therefore a declaration of intent, not a mere technical finding. It takes place at the request of the more diligent party, by agreement or, failing that, by court order, and it is in every case pronounced in the presence of both parties.
That last requirement is not a procedural detail. An acceptance organised in the absence of the contractor, or without his having been properly summoned, is open to challenge, and a company that discovers after the event a record it took no part in will have little difficulty disputing it. Conversely, the employer who lets the contractor produce a pre printed form on handover day, on the doorstep, often signs without realising that he has just closed off for good the fate of every defect he could see.
Acceptance is distinct from three neighbouring operations with which it is regularly confused. Delivery is the physical handing over of the works and says nothing about acceptance. Taking possession is a fact, moving in. Payment of the balance is performance of a contractual obligation. None of these three amounts to acceptance on its own, but together they can raise a presumption of it, and that is where cases are won and lost.
Tacit acceptance, or how to accept without knowing it
An employer moves in, settles the final invoice, and never organises an acceptance meeting. Has he accepted the works? The Third Civil Chamber has laid down a clear rule: taking possession of the works and paying for them raise a presumption of the employer unequivocal intention to accept them, with or without reservations (Cass. 3e civ., 18 April 2019, no. 18-13.734, reported). The presumption can be rebutted, but it reverses the burden of argument: it is for the party claiming not to have accepted to explain why.
The practical consequence runs both ways. For the employer, tacit acceptance fixes the start of the ten year warranty on a date he did not choose, sometimes months before the one he thought applied, which can be enough to make his claim time barred. For the contractor and his insurer, tacit acceptance is good news: without acceptance there is no decennial liability, so no compulsory insurance to call on, and the employer is left having to prove a contractual breach.
Litigation about tacit acceptance is won on documents: transfer dates, electricity and water consumption records, home insurance certificates, change of address, emails in which the employer complains about finishes while living in the property. A case built six months later on recollection is lost. A case built on dated documents holds.
Reservations: what they save, what they lose
Acceptance with reservations is the commonest situation and the least well understood. Reservations are the list of apparent defects the employer refuses to accept as they stand. They do not suspend acceptance, they qualify it. The warranties therefore run from that date, reservations included.
What is reserved remains owed under the warranty of perfect completion, provided for in the second paragraph of article 1792-6. What is not reserved, although it was visible, is in principle lost: acceptance purges apparent defects. The word visible deserves weight. A defect is apparent where a lay employer, exercising normal diligence, could see it and gauge its extent. A crack of a few millimetres with nothing to signal that it is moving is not necessarily apparent in all its consequences, and that is often where the argument shifts.
Hence a piece of advice that sounds trivial and that almost nobody follows: be assisted on the day of acceptance. A project manager, an architect, an inspection body, or failing that a building professional who has not worked on the site. The cost of half a day of assistance bears no relation to that of an unreserved defect. And where the site has been contentious, it is not absurd to seek acceptance by the court rather than sign a document drafted by the contractor.
The day everything starts: the three clocks
Acceptance triggers three periods at once, covering neither the same defects nor the same debtors.
The warranty of perfect completion runs for one year. It binds the contractor, and him alone, and covers every defect notified, whether reserved in the record or notified in writing after acceptance. It does not extend to the effects of normal wear or use, a qualification in the last paragraph of article 1792-6 that serves as a standard line of defence.
The warranty of proper working order runs for at least two years. Article 1792-3 reserves it for items of equipment other than those falling under the ten year warranty, that is, in practice, separable equipment intended to function.
The decennial warranty runs for ten years. Under article 1792 it covers damage that compromises the solidity of the works or which, affecting one of their constituent parts or one of their items of equipment, renders them unfit for their purpose.
To these three warranties is added a limitation rule that is often forgotten: apart from actions governed by articles 1792-3, 1792-4-1 and 1792-4-2, actions in liability against builders and their subcontractors are time barred ten years after acceptance (Civil Code, art. 1792-4-3). In other words, acceptance does not only close off apparent defects, it also confines ordinary law claims against builders within a ten year window.
No acceptance, no decennial warranty
The rule is blunt and it explains a large share of failed claims. The statutory warranties of articles 1792 and following presuppose acceptance. Where the site is abandoned mid contract, where the company disappears before the works are finished, where the employer refuses to accept because the works are incomplete, there is no decennial warranty, there is a contractual breach.
That breach can be argued, but on entirely different ground: fault, damage and causation must be proved, and compulsory decennial liability insurance is not intended to respond. Damage to works insurance does contain a limited exception: article L. 242-1 of the Insurance Code provides that it takes effect after the warranty of perfect completion expires, but that it nonetheless covers repairs where, before acceptance and after a formal demand has gone unanswered, the building contract is terminated for non performance by the contractor.
An employer facing a halted site therefore has a decision to take quickly, and it is a legal one before it is a technical one: serve a formal demand, have the state of progress formally recorded, terminate in the proper form, and only then resume the works with another company. The order of operations governs the cover.
Acceptance and resale: successive owners
The statutory warranties do not lapse on resale. Article 1792 names as creditor the employer or the purchaser of the works, and article 1646-1 provides, for the sale of a building to be constructed, that the warranties benefit successive owners. A buyer acquiring a six year old house also acquires the four years of decennial warranty that remain, and can sue the original builders directly.
This matters considerably in acquisition due diligence. The first question to put to a seller is not whether the house has defects, but what the date of acceptance is and where the record of it is. Without that date the residual life of the warranties cannot be determined, and the buyer is acquiring an uncertainty. The second question concerns the damage to works insurance certificate, whose absence is a signal.
It is worth recalling that article 1792-1 treats as a builder not only the architect, contractor or technician bound to the employer by a building contract, but also any person who sells, after completion, works that he built or had built. A private individual who has a house built and resells it within ten years therefore takes on strict liability, often without knowing it.
What to secure on the day
A useful record is not a form signed in haste. It identifies the parties and the contract, it dates the operations, it describes the reservations precisely enough for a third party to understand them two years later, it sets a time for putting them right, and it is signed by everyone present. Dated photographs annexed to it are worth more than three pages of description.
Three checks usefully complete the exercise. The decennial liability insurance certificate of each participant, valid at the date the site opened, with the exact list of activities covered: this is where many cases collapse, the company being insured for masonry but not for roof framing. The as built documents and maintenance instructions for the equipment, whose absence the insurer will rely on. And the damage to works insurance certificate, which the employer must have taken out before the site opened.
Frequently asked questions
Can acceptance of the works be refused?
Yes, where the works are unfinished or affected by defects that make them unusable. The refusal must be reasoned and notified. The contractor may then apply to the court for acceptance to be pronounced, and the court will assess whether the works were in a fit state to be accepted. A purely tactical refusal, designed to delay payment of the balance, generally rebounds on the party making it.
Can acceptance be partial?
Nothing prevents it where the contract lends itself to it, for instance for a completed trade package while others continue. The record must then delimit precisely what is accepted, because each partial acceptance starts its own periods running. The practice is common in commercial projects and more delicate for a single house.
What happens if the contractor does not clear the reservations?
Article 1792-6 organises the way out: the time for carrying out the remedial works is fixed by agreement and, failing agreement or in the event of non performance within the time fixed, the works may, after a formal demand has gone unanswered, be carried out at the cost and risk of the defaulting contractor. The prior formal demand is not optional, it is the condition of the whole operation.
Does acceptance cover hidden defects?
No. Acceptance purges apparent defects, not hidden ones. A defect that a lay employer could not detect on the day of acceptance remains covered by the statutory warranties, on their respective conditions and within their respective periods.
Is a bailiff needed to accept the works?
It is not required. A judicial officer becomes useful where the site is contentious, where the contractor refuses to sign, or where the defects have to be recorded before a third party puts them right. Otherwise the assistance of a qualified professional is enough and costs less.
Can the employer withhold part of the price?
A retention, where the contract provides for one, allows a fraction of the price to be held back to secure the clearing of reservations. It follows rules of its own, notably as to its release, and it is quite different from an outright refusal to pay, which exposes the employer to late payment interest and to termination at his own fault.