Thirteen years of litigation over landscaping works
In autumn 2012 the client commissioned landscaping works around his house for a preliminary contract sum of about 34,000 euros gross minus a 10 percent discount. The parties agreed on a formal acceptance with a protocol and on the contractor’s duty to participate and to provide staff and measuring equipment. Additional orders followed, and the contractor issued three invoices. He did not appear at the agreed acceptance date in June 2013. The client’s site manager, expressly authorised in the contract, carried out the acceptance without him and recorded several defects in a protocol.
The client refused to pay the balance, arguing that without a valid acceptance the remuneration was not due. The Regional Court of Lübeck (6 O 381/16) awarded the contractor about 25,400 euros. The OLG Schleswig reduced this to 21,444.27 euros plus interest running since September 2013 and awarded a further 1,745 euros only concurrently against removal of two defects. Thirteen years passed between invoicing and the appeal judgment.
Why acceptance matters (§ 640, § 641 German Civil Code)
The client must accept work performed in accordance with the contract and may not refuse acceptance because of insignificant defects (§ 640 (1) BGB). Upon acceptance the remuneration becomes due (§ 641 (1) BGB). Acceptance also shifts the burden of proof for defects to the client and starts the limitation periods. How the burden of proof works for construction defects is covered in our separate guide to construction defects and the burden of proof.
Formal acceptance is valid without the contractor
The court’s key holding: even where a formal acceptance has been agreed, the contractor’s presence is not a condition of validity. Acceptance is a declaration of the client, who can inspect the works and decide whether they conform to the contract without the contractor being present. The client’s signature on the acceptance protocol is enough. The German standard construction terms follow the same idea: under § 12(4) no. 2 VOB/B a formal acceptance may take place in the contractor’s absence if the date was agreed or the contractor was invited in good time. A contractual duty of the contractor to participate changes nothing where the client was in fact able to carry out the acceptance alone. The position can differ only where the parties expressly agreed that both sides must sign the protocol — then the signature can form part of the acceptance itself.
Two practical lessons for contractors: staying away does not block the acceptance, and whoever stays away leaves the defect list entirely to the client.
Suing for payment without acceptance
Part of the additional works had never been accepted. The court awarded the remuneration nonetheless: where the work is ready for acceptance, the contractor may sue for payment even without acceptance. The payment claim implicitly contains the demand for acceptance, and requiring a separate acceptance lawsuit first would be empty formalism. As the client did not assert any defects in the invoiced works, he was obliged to accept them — and to pay.
Invoice checking is no acknowledgement, but it reverses the burden of proof
The client’s authorised site manager had checked the invoices and confirmed the quantities. That is not an acknowledgement of the claim. It does have an important evidentiary consequence: where the client confirmed the contractor’s quantities during invoice checking and later verification is no longer possible because of subsequent works, the client may still dispute the quantities in court, but he must then show and prove that the confirmed figures are wrong (Federal Court of Justice, judgment of 27 July 2006, VII ZR 202/04). In addition, the client refused to allow the paved surfaces to be opened up for inspection, so the court estimated the scope of the works (§ 287 (2) Code of Civil Procedure), relying among other things on the confirmed quantities.
The contrast with our article on construction timesheets and the site manager’s signature is instructive: there the site manager had no authority and his signatures did not help the contractor. Here the site manager was authorised — and even then the invoice check was no acknowledgement, only an evidentiary advantage. Every analysis starts with the question of who acts for the client and with what authority.
Also in the judgment: hourly work and works without an order
Two side issues are worth noting. For hourly work the contractor billed 80 hours and was awarded 27 — the effort an expert considered necessary for economical performance. Contractors are under an ancillary duty to work economically, and the client can oppose uneconomical effort with a claim to be released from it. For additional works whose commissioning could not be proven, the contractor received the customary remuneration under the German rules on benevolent intervention in another’s affairs, because the works corresponded to the client’s interest and will. Unagreed lump-sum prices, however, did not stand.
Defects strike back: double retention and § 215 BGB
For two defects — a non-functional garden cable and a defective gravel-edge border — the client obtained a right of retention: payment only concurrently against removal of the defects. Under § 641 (3) BGB the client may generally withhold twice the expected cost of removing a defect, and he need not expressly invoke this right.
The contractor’s limitation defence failed: under § 215 BGB the limitation of defect claims does not exclude the right of retention if the defect became apparent before the limitation period expired. It is not necessary that the client invoked the right before limitation (Federal Court of Justice, judgment of 5 November 2015, VII ZR 144/14). Defects notified within the warranty period can therefore reduce the contractor’s remuneration many years later — here more than a decade after completion.
Acceptance without surprises
Notify completion in writing and propose an acceptance date. Attend every formal acceptance appointment — a protocol drawn up without you can still be valid. If you cannot attend, ask in writing for a new date and document the reason. Document works before they are covered up: photos, measurements, confirmed quantities. Keep checked invoices — confirmed quantities can shift the burden of proof to the client. If acceptance is refused without significant defects, consider suing for payment directly. Remedy notified defects or price in the risk: the client can usually withhold twice the removal costs, even after limitation.
Frequently asked questions
Is a formal acceptance without the contractor valid in Germany?
Yes. The contractor’s presence is not a validity requirement, the client’s signature on the protocol suffices (OLG Schleswig, 1 U 5/21). For VOB/B contracts see § 12(4) no. 2 VOB/B.
Can I claim payment without acceptance?
Yes, if the work is ready for acceptance and the client asserts no defects. The payment claim implicitly includes the demand for acceptance.
Does invoice checking amount to an acknowledgement?
No. But quantities confirmed during checking reverse the burden of proof once they can no longer be verified.
How much can the client withhold for defects?
Generally twice the expected cost of removing the defect (§ 641 (3) BGB), without having to invoke the right expressly.
Can time-barred defects still be used against the contractor?
Yes. If the defect appeared before the limitation period expired, the right of retention survives under § 215 BGB.
Source: OLG Schleswig, judgment of 22 April 2026, 1 U 5/21 (previously Regional Court of Lübeck, 6 O 381/16), §§ 215, 640, 641 German Civil Code (BGB) and § 12(4) VOB/B. All statements verified against the full text of the judgment and the official texts of the statutes. Legal status: July 2026. This article is for general information and does not replace legal advice in an individual case.