Acceptance of the works (Art. 1792-6 French Civil Code): the act that transfers risk to the project owner

Acceptance of the works (réception des travaux) conditions everything. An investor restructuring an office building, completing a residential scheme or carrying out heavy works on an asset held in a portfolio stakes, on the day of acceptance, its entire guarantee regime for the following decade. A badly drafted record of acceptance, imprecise reservations, a balance paid too early or an acceptance never formalised shift the dispute from the favourable ground of the presumption of liability to the much more hostile ground of proven fault. This guide treats acceptance not as a site formality but as an act of risk management: the formalities of the record of acceptance, the regime of reservations, tacit and judicial acceptance, refusal to sign, the interaction with payment of the balance and the retention (retenue de garantie), and then the real cost of the absence of acceptance.

Article 1792-6 of the French Civil Code: a unilateral legal act, not a site report

The text is short and its first sentence is enough to frame the analysis.

Acceptance is the act by which the project owner declares that it accepts the work, with or without reservations. It takes place at the request of the most diligent party, either amicably or, failing that, by the court. It is in all cases pronounced on an adversarial basis.

Three operational consequences follow from this wording, which derives from Law No. 78-12 of 4 January 1978, known as the Spinetta Law.

First, acceptance is a unilateral act of the project owner (maître d'ouvrage). It is not a bilateral agreement with the contractor. The builder (constructeur) does not "accept" anything: it attends, it records, it may contest the reservations, but the declaration of acceptance comes from the project owner alone. The contractor's signature on the record of acceptance (procès-verbal de réception) is therefore not a condition of the validity of acceptance, but evidence that the operation was adversarial.

Second, acceptance is distinct from completion. A work can be completed without being accepted, and accepted without being entirely completed, provided it is in a state to be accepted. Acceptance is also distinct from delivery, a concept specific to the off-plan sale (vente en l'état futur d'achèvement, VEFA), and from taking possession, which is a mere physical fact. Confusing these concepts is the first source of error in cases.

Third, acceptance must be adversarial. A project owner who summons the contractors by registered letter with acknowledgment of receipt, for a specified date and time, and who draws up the record in their presence or in their duly recorded absence, meets this requirement. An acceptance organised without summoning the contractors concerned cannot be relied on against them, which deprives the project owner of the starting point of the statutory guarantees as against them.

What acceptance really transfers: custody, risks, apparent defects

Transfer of custody and risks

Before acceptance, the contractor has custody of the work. Loss or deterioration of the thing falls within its sphere, subject to fault of the project owner, in line with Article 1788 of the French Civil Code. After acceptance, custody passes to the project owner. Water damage occurring in a building that has been accepted but not yet put into operation is treated as the owner's loss, not as a failure to perform the contract.

For an investor, this transfer determines the insurance policy. The date of acceptance must be coordinated with taking out the multi-risk building policy and, where applicable, with the works insurance, failing which a gap in cover arises between the end of the contractor's custody and the start of the owner's policy.

Clearing apparent defects not reserved

This is the most costly and the least anticipated point. Acceptance pronounced without reservation covers apparent defects and non-conformities. A project owner who signs a record of acceptance without reservation can no longer subsequently complain of a non-conformity with the contract that was visible: reduced ceiling height, a finish different from that prescribed in the special technical specifications (CCTP), absence of a planned item of equipment, finishes not in line with the tender documents.

Whether a defect was apparent is assessed in respect of the project owner, taking into account its competence and the assistance it had on the day of the operations. An institutional investor assisted by a project manager (maître d'œuvre) for execution and a technical inspection body is judged more severely than a lay project owner. Technical assistance during the operations preceding acceptance is therefore not a luxury: it is a measure to preserve rights.

The starting point of the statutory guarantees

Acceptance starts, simultaneously:

• the one-year completion guarantee (garantie de parfait achèvement) provided for by Article 1792-6, second paragraph, of the French Civil Code;
• the two-year functioning guarantee (garantie de bon fonctionnement) on separable items of equipment, Article 1792-3;
• the ten-year guarantee (garantie décennale) of Article 1792, the limitation period for which is set at ten years from acceptance by Article 1792-4-1;
• the limitation period for actions against builders and their subcontractors, Article 1792-4-3;
• the period for calling on the construction damage insurance (assurance dommages-ouvrage) taken out under Article L. 242-1 of the French Insurance Code.

None of these periods starts to run without acceptance. This is the axis of the whole second part of this guide.

Acceptance and payment of the balance: never reverse the sequence

In private contracts, payment of the balance is usually conditional on acceptance and on the issue of the final statement of account (décompte général). Standard NF P 03-001, frequently referred to as a contractual document in private works contracts, governs this sequence. The contractual sequence must still be followed in practice. The chain of statements of account and the effects for the project owner of notification of the final definitive statement of account are analysed in our dedicated article.

The recurring error is to pay the balance to unblock a site situation, before any formalisation of acceptance, and then to take possession of the premises. This combination exposes the project owner to having a tacit acceptance asserted against it, on a date it did not choose, without reservation, and therefore clearing all apparent defects. A contractor that is, a few months later, blamed for visible defects will invoke precisely that tacit acceptance.

The rule of conduct is simple. The balance is not paid before the record of acceptance is signed, and taking possession does not precede acceptance. Where operating constraints require early occupation, it must be formalised by an early occupation agreement expressly stating that it does not amount to acceptance.

Retention: a lever distinct from reservations

Law No. 71-584 of 16 July 1971 authorises a retention capped at 5% of the value of the works, intended to cover the reservations made at acceptance. It is released on expiry of one year from acceptance, unless the project owner lodges a reasoned objection notified to the contractor by registered letter with acknowledgment of receipt before that period expires.

Two errors are regularly encountered. The first is to let the one-year period run without notifying an objection, which makes the retention payable even though the reservations have not been cleared. The second is to notify an objection in general terms, without linking it to reservations identified in the record. The objection must be reasoned, defect by defect, and costed as far as possible. On the use of the retention as a lever over the clearing of reservations and its fate if the contractor fails, see our specific analysis.

The retention may be replaced by a personal and joint guarantee from an approved institution. An investor who accepts this replacement must check the duration of the guarantor's commitment and its conditions of release, failing which it exchanges an available sum for a commitment whose enforcement will require proceedings.

The record of acceptance: drafting an enforceable document

No formalism is imposed by law on the record. This freedom is a trap: it is the quality of drafting that determines whether the document can be relied on in litigation, several years later.

A usable record contains the precise identification of the operation and the work packages (lots) concerned, the date of the operations, the list of participants with their capacity, a statement of the summonses sent, the express declaration of acceptance of the work with or without reservations, the effective date of acceptance where it differs from the date of signature, and the inventory of reservations.

Wording of reservations

A reservation must be drafted like a future head of claim. "Finishes to be redone" is worthless. "Painting package, R+3 floor, wall covering peeling on the north wall over approximately three linear metres, complete redoing of the substrate and covering" identifies the package, the defect, its location and the work expected. An imprecise reservation will be contested by the contractor, which will argue that the defect relied on was not the one reserved.

Each reservation must be attached to a package and a contractor. In an operation with separate trade packages (corps d'état séparés), a reservation not allocated remains without an addressee, and therefore without a debtor.

Statements to avoid

Three wordings systematically weaken the project owner's position. The statement "acceptance pronounced subject to the clearing of reservations", which creates uncertainty over the starting point of the guarantees when acceptance with reservations is perfectly valid and produces its effects immediately. The statement of an unjustified retroactive effective date, which shortens the ten-year period by the same amount. The clause by which the project owner waives any claim in respect of the works carried out, which may be relied on as a waiver of the right to invoke apparent defects.

Partial acceptance and acceptance by package

Private contract practice allows acceptance by phase or by package. Each acceptance starts its own periods for the package concerned. This technique is useful on phased operations, in particular where a phase must be put into operation before overall completion. It requires rigorous traceability: a table tracking acceptance dates by package is essential to manage guarantee periods on a long-term asset.

Reservations after acceptance and the completion guarantee

Article 1792-6, second paragraph, distinguishes two categories of defects falling under the completion guarantee: those flagged by reservations noted in the record of acceptance, and those revealed after acceptance and notified in writing within the year.

This second branch is the answer to the question of reservations after acceptance. A defect that appears three months after acceptance, and that was not apparent on that day, falls under the completion guarantee provided it is notified in writing to the contractor before the one-year period expires. Beyond that period, the project owner has only the two-year or ten-year guarantees, whose conditions are more demanding: impairment of the functioning of a separable item of equipment, or impairment of the solidity of the work or unfitness for its purpose.

The notification must be in writing, dated, addressed to the contractor concerned, and describe the defect. Sending a site visit report by email to the project management team does not amount to notification to the contractor.

Clearing the reservations

Article 1792-6 governs what follows. The time limits for carrying out the remedial works are set by common agreement. Failing agreement or in the event of non-performance within the period set, the works may, after a formal notice (mise en demeure) that has remained unsuccessful, be carried out at the cost and risk of the defaulting contractor. Performance of the works required under the completion guarantee is recorded by common agreement or, failing that, by the court.

This mechanism is a real lever, provided its chronology is respected. The prior formal notice is not optional: it is what opens the right to performance at the contractor's cost and risk. A project owner who brings in a third-party contractor without prior formal notice risks having the substitution cost refused.

The clearing of reservations must be recorded in a written document, reservation by reservation. A record of global clearing "all reservations cleared" then prevents it from being argued that a reserved defect was never remedied.

Reservations cleared and persistent defect

When a reserved defect, deemed cleared, reappears, the characterisation changes. A defect that, after remedial work, compromises the solidity of the work or makes it unfit for its purpose falls within the scope of the ten-year guarantee. The initial reservation does not exclude the ten-year guarantee where the defect, in the extent revealed after acceptance, exceeds what had been reserved. The dispute is then played out on proof of the development of the defect, which makes a court-appointed expert report almost systematic.

Tacit acceptance, judicial acceptance, refusal to sign the record

Tacit acceptance

Case law has long accepted that acceptance may be tacit, where an unequivocal intention of the project owner to accept the work is established. Two indications are consistently retained and, when combined, give rise to a presumption of that intention: taking possession of the work and payment in full or almost in full of the price.

Tacit acceptance is a safeguard when the project owner has neglected the formalities and seeks, after a loss, to establish a starting point for the ten-year period. It is a trap when it is invoked by the builder to argue that apparent defects have been cleared. Its date is by definition uncertain, which weakens the calculation of the ten-year period and that of calling on the construction damage insurance.

For an investor, the rule is never to rely on tacit acceptance. It is established after the event before a court, it cannot be planned.

Judicial acceptance

Article 1792-6 expressly provides that acceptance takes place, failing amicable agreement, by the court. The judge pronounces acceptance where the work is in a state to be accepted, that is, habitable or usable in accordance with its purpose, even if remedial work remains to be done. The judge sets the date of acceptance, which may be earlier than the decision, and may make the acceptance subject to reservations.

The judicial route is necessary in two situations: the contractor has abandoned the site or refuses to attend the acceptance operations; or the project owner and the contractor disagree on the state of completion of the work. An investigative measure under Article 145 of the French Code of Civil Procedure usefully precedes the summons on the merits, the expert being tasked with describing the state of the work, stating whether it is in a state to be accepted and listing the defects to be reserved.

Refusal to sign the record of acceptance

Refusal to sign the record of acceptance may come from either party, with different consequences.

Where the contractor refuses to sign, the project owner retains control of the act, since acceptance is unilateral. It draws up the record, notes in it the refusal to sign or the absence of the duly summoned contractor, and notifies it by registered letter with acknowledgment of receipt. Acceptance can be relied on provided the adversarial nature is established by the summons.

Where it is the project owner that refuses to accept, its position must be reasoned. The refusal is legitimate if the work is not in a state to be accepted: substantial non-completion, major non-conformity with the contract, impossibility of operating it. It is abusive where it concerns finishes amounting to mere reservations. An abusive refusal exposes the project owner to retroactive judicial acceptance, to penalties, and to the cost of tying up the site. Above all, it delays the starting point of the guarantees, to the detriment of the refusing party itself. Refusing acceptance to obtain negotiating leverage over the balance is a losing strategy: acceptance with reservations, combined with the retention and performance at the contractor's cost and risk, offers superior leverage without sacrificing the statutory guarantees.

Absence of acceptance and the ten-year guarantee: the real cost

This is the second part, the one that emerges in litigation, often five or seven years after the works.

No starting point, therefore no statutory guarantee

The guarantees of Articles 1792 et seq. of the French Civil Code are post-acceptance guarantees. Without acceptance, whether tacit or judicial, there is no completion guarantee, no two-year guarantee and no ten-year guarantee. The presumption of liability of Article 1792, which relieves the project owner of proving fault, does not apply.

The consequences of the absence of acceptance are not limited to a delay: they bring about a change of regime.

The shift to ordinary contractual liability

In the absence of acceptance, the project owner acts on the basis of ordinary contractual liability. It must establish a breach by the contractor of its contractual obligations, loss and a causal link. The burden of proof shifts entirely onto it.

In practice, this means a court-appointed expert report whose purpose is no longer merely to describe the defect and its attribution, but to establish the fault in performance: failure to comply with good practice, the applicable DTU (French technical standards) and the requirements of the CCTP. The difference in cost and uncertainty between a ten-year action and an ordinary contractual action is considerable, in particular in operations with separate trade packages where attribution between packages becomes a dispute in its own right.

The limitation period also changes. Article 1792-4-3 of the French Civil Code confines actions against builders to a period of ten years from acceptance. This provision presupposes acceptance. Failing that, the project owner is referred to the ordinary limitation period of Article 2224 of the French Civil Code, five years from the day on which it knew or should have known the facts enabling it to act. The sliding starting point can work in both directions, but the uncertainty itself is a risk factor in a high-stakes case. The separate case of defects revealed after the ten-year period has expired, and recourse to the builder's intentional fault (faute dolosive), is dealt with in our article on that question.

Construction damage insurance neutralised

The construction damage insurance of Article L. 242-1 of the French Insurance Code pre-finances the repair of defects of a ten-year nature. Without a defect of a ten-year nature, for want of acceptance, there is no guarantee that can be called on under the general regime.

The text does, however, provide for one scenario of intervention before acceptance: where, after a formal notice that has remained unsuccessful, the works contract concluded with the contractor is terminated for non-performance of its obligations. This route is narrow and requires a rigorous chronology of documented formal notices and termination. A project owner facing site abandonment must build this file from the first breaches, even before contemplating termination.

Decision chronology

The absence of acceptance is dealt with as a calendar, not as an observation. As soon as a site bogs down, three steps follow in sequence: a formal notice to complete and to attend the acceptance operations, by registered letter with acknowledgment of receipt, with a date and time for the appointment; failing attendance, a record of default (procès-verbal de carence) and a bailiff's report of the state of the work; then an application for summary expert proceedings under Article 145 of the French Code of Civil Procedure, accompanied by a claim for judicial acceptance on the merits.

The aim is to fix an acceptance date, even a judicial one and subject to extensive reservations, so as to start the periods running and make the statutory guarantees and the insurance available.

The special case of the VEFA: acceptance and delivery are not the same

In an off-plan sale operation governed by Article 1601-3 of the French Civil Code and Articles L. 261-1 et seq. of the French Construction and Housing Code, two acts coexist.

Acceptance takes place between the seller, project owner within the meaning of Article 1792-6, and the contractors. It starts the statutory guarantees, which the seller passes on to the buyer in its capacity as builder within the meaning of Article 1792-1 of the French Civil Code.

Delivery takes place between the seller and the buyer. It gives rise to a record of delivery accompanied, where applicable, by reservations. Article 1642-1 of the French Civil Code governs the seller's discharge for apparent construction defects and non-conformities, and Article 1648, second paragraph, confines the action within a one-year period. In parallel, Article R. 261-14 of the French Construction and Housing Code provides for the 5% balance to be held in escrow in the event of a dispute at delivery.

A buyer-investor must therefore request from the seller the records of acceptance of the packages, the only basis for calculating the ten-year period applicable to its property. Relying on the delivery date to calculate a ten-year period is a classic error, which leads to acting out of time.

Treating acceptance as an act of structuring, not as a signature at the end of the site

Acceptance is not the last act of the site. It is the first act of the ten-year guarantee regime, and the document that will be read, word for word, by a court-appointed expert and by a judge in a dispute that will involve sums out of all proportion to the cost of preparing it.

Three choices structure the position of the investor project owner. Accept with reservations rather than refuse, except in the case of substantial non-completion, because acceptance with reservations opens all the guarantees while preserving the retention and performance at the contractor's cost and risk. Never pay the balance or take possession before the record is signed, to avoid a tacit acceptance imposed on it and the clearing of apparent defects. Start judicial acceptance without delay where the contractor evades, because each month without acceptance is a month without a ten-year starting point and without insurance that can be called on.

In practical terms: before the operations preceding acceptance, have the draft record and the list of reservations reviewed by counsel, package by package, and check that each reservation is located, allocated and drafted in terms of work that can be demanded. On the day of acceptance, the drafting costs a few hours. In an expert investigation, it is worth the difference between a presumption of liability and proof of fault to be adduced.

Frequently asked questions

Can acceptance of the works be pronounced if defects remain?

Yes. Article 1792-6 of the French Civil Code expressly provides for acceptance with reservations. The criterion is that the work is in a state to be accepted, that is, habitable or usable in accordance with its purpose. Finishing defects, minor non-conformities or equipment to be adjusted do not justify a refusal of acceptance: they are reserved in the record and then fall under the one-year completion guarantee.

What are the consequences of the absence of acceptance for the ten-year guarantee?

Without acceptance, no statutory guarantee runs. Article 1792 presupposes acceptance for the presumption of liability of builders to apply, and Article 1792-4-1 sets the starting point of the ten-year period at acceptance. The project owner is then referred to ordinary contractual liability, with the burden of proving fault, and to the five-year limitation period of Article 2224 of the French Civil Code. Construction damage insurance cannot be called on under the general regime, except in the scenario of termination of the contract after an unsuccessful formal notice provided for in Article L. 242-1 of the French Insurance Code.

What should be done if the contractor refuses to sign the record of acceptance?

As acceptance is a unilateral act of the project owner, the contractor's refusal to sign does not prevent it. The contractor should be summoned by registered letter with acknowledgment of receipt specifying the date and time, the record should be drawn up noting the refusal to sign or the absence, and the record should be notified by registered letter. The adversarial nature, a condition laid down by Article 1792-6, is satisfied by the proper summons. In the event of a dispute over the state of completion, judicial acceptance remains available.

Can reservations be made after acceptance?

Yes, for defects revealed after acceptance that were not apparent on that day. Article 1792-6, second paragraph, brings them within the completion guarantee provided they are notified in writing to the contractor within one year of acceptance. The notification must be addressed to the contractor concerned and describe the defect. By contrast, apparent defects not reserved in the record are covered by acceptance and can no longer be invoked.

Can payment of the balance amount to acceptance of the works?

Payment in full or almost in full of the price, combined with taking possession of the work, gives rise to a presumption of tacit acceptance under settled case law. A project owner who pays the balance before any formalisation therefore risks having an acceptance without reservation asserted against it, on a date it did not choose, clearing apparent defects. The practical rule is to make payment of the balance conditional on signature of the record of acceptance and, where early occupation is necessary, to conclude an agreement stating that it does not amount to acceptance.

What is the fate of the retention after acceptance?

Law No. 71-584 of 16 July 1971 caps the retention at 5% of the value of the works and provides for its release on expiry of one year from acceptance. The project owner keeps the sums only if it notifies the contractor, before that period expires, of a reasoned objection by registered letter with acknowledgment of receipt. The objection must refer to identified reservations and, as far as possible, cost the remedial works. Failing notification within the period, the retention must be released even if the reservations have not been cleared.

How is the starting date of the ten-year period calculated for a property acquired off plan?

The ten-year period runs from acceptance of the works by the seller from the contractors, not from delivery of the unit to the buyer. These two dates are distinct and may be several months apart. The buyer must therefore ask the seller for the records of acceptance, package by package. Relying on the delivery date shown in the record of delivery exposes it to an action brought out of time.