- An investor is obliged to accept construction works if the contractor notifies their completion – as stated in the judgment of the Supreme Court of 5 March 1997.
- Possible faults and defects should be specifically described in the acceptance protocol, thanks to which investor may exercise its rights under warranty.
- It is possible to refuse acceptance of the work only when it does not comply with the project and technical know-how or its defects are so serious that it is unfit for use.
Acceptance of construction works is very important both for the investor and for the contractor. It confirms performance of the order and obliges the investor to pay remuneration to the contractor. On the other hand, from that time on, the investor may claim removal of defects by exercising its rights under warranty. A frequent problem is the question of the investor’s obligation to accept the construction works despite the defects in the facility.
The law imposes on the investor the obligation to accept the works
Under Art. 647 of the Civil Code, by a construction works contract, the contractor commits to hand over the facility provided for in the contract performed in accordance with the project and technical know-how, and the investor commits to carry out the actions required by the relevant regulations to prepare the works, especially to hand over the construction site and to deliver the project and to accept the facility and pay the agreed remuneration. In the judgment of 5 March 1997 (II CKN 28/97), the Supreme Court held that if the contractor notifies completion of construction works, the investor will be obliged to accept them regardless of whether the defects of the work are significant or insignificant and, in the same way, made the investor’s obligation independent of the character of the disclosed defects.
– However, in exceptional cases, the investor may refuse to accept construction works. This can be done if the work completed by the contractor is inconsistent with the project and technical know-how or if its defects are so significant that it is unfit for use. The above is confirmed, among others, by the judgment of the Court of Appeal in Cracow of 28 January 2014. The remaining defects or faults are considered insignificant for the work’s acceptance, however, they imply improper performance of the order and, as a result, the investor may claim their removal within a specified deadline or reduction of the contractor’s remuneration– says Jacek Kosiński from the law firm Jacek Kosiński Advocates and Legal Advisers.
The acceptance protocol has a key role
The document summarizing cooperation between the contractor and the investor is the acceptance protocol drawn up upon receipt of the works. The law does not prescribe how this document should exactly look and what its contents should be. The investor should take care to include in the protocol all defects and faults and the deadlines for their removal. The protocol may also include a declaration by the investor concerning the choice of another right under the regime of the contractor’s liability for defects disclosed at the receipt. This may involve, e.g., reduction of the contractor’s remuneration. The regime of statutory warranty applies also to construction works. Under Art. 637 of the Civil Code, if a specific work has defects, the ordering party may demand that they be removed by giving the person who accepted the order an additional period for this purpose. The ordering party may also claim proportional reduction of the remuneration. The same refers to situations when the person who accepted the order fails to remove the defects within the deadline specified by the ordering party.