Reviewing a construction contract: what matters for acceptance, warranty and retention

1. Acceptance (Abnahme)

With acceptance, the risk passes to the client (§ 12 Abs. 6 VOB/B), and the period for defect claims begins. If the VOB/B has been agreed and no acceptance is requested, the work is deemed accepted: 12 working days after written notification of completion (§ 12 Abs. 5 Nr. 1 VOB/B), and in case of use, 6 working days after the start of use (§ 12 Abs. 5 Nr. 2 VOB/B).

If a contract excludes deemed acceptance and requires an express written acceptance, a completed work can remain “in limbo” for a long time – for example if the client stays silent.

2. Warranty (Gewährleistung)

Defect claims for a building become time-barred under the BGB after five years (§ 634a Abs. 1 Nr. 2 BGB), and under the VOB/B as a rule after four years (§ 13 Abs. 4 VOB/B). Deviating periods in the contract – for example six instead of four years – should be agreed deliberately and factored into your calculation.

3. Retention (Sicherheitseinbehalt)

A security is meant to secure performance in accordance with the contract and the defect claims (§ 17 Abs. 1 VOB/B). Retention, deposit or guarantee are possible; under the VOB/B the contractor can choose among the types of security and can exchange them (§ 17 Abs. 3 VOB/B). Check the amount, the duration and the time of release.

How the review works in BauWalker

You choose the contract and, if you like, ask your own question, for example about acceptance and warranty.

The review takes up to about ten minutes; you can close the page. BauWalker compares the contract with the VOB/B and the BGB.

In the report you see the risks by severity, each with the contract clause it is based on.