While the concept of tacit acceptance is not referred to in Article 1792-6 of the French Civil Code, tacit acceptance has been nevertheless admitted repeatedly by courts (Cass. 3rd Civ., 12 October 1988, No. 87-11.174; Cass. 3rd Civ., 25 June 2014, No. 13-19.018). This supposes a transfer of possession and the expression of an unambiguous intention to accept the works.
In the instant case, an owner procured the completion by an interior decorator of works for the restructuring of his apartment, including the lengthening of a mezzanine and the creation of a gallery and two bathrooms. The masonry works were entrusted to a contractor. After amicable termination of the contracts and payment for the completed works, the owner moved into the premises on an “as-is” basis and obtained in summary proceedings the reimbursement of amounts in excess received by the architect against whom he filed an indemnification action. The architect then filed a third-party claim against his insurer and the masonry contractor and its insurers.
In order to dismiss the claim seeking the noting of tacit acceptance, the appellate court considered that even a tacit acceptance could not have taken place in the instant case, as such an acceptance is to take place at one single time at the end of the works in the presence of the architect.
The Cour de Cassation quashed this decision, as it breached Article 1792-6 of the French Civil Code, and as it found that the conduct of the owner, who had taken possession of the apartment prior to completion of the works and who had paid the price of the already completed works, could support the owner’s unambiguous intention to accept the works (see accord. Cass, 3rd Civ., 6 October 1999, No. 98-12.416).
However, it is necessary to recall that the Cour de Cassation has had the opportunity to find that the transfer of possession and the payment of the price are not sufficient whenever other indications support the finding that the project owner did not intend to accept the works. More specifically, no tacit acceptance could be presumed when the project owner refused to pay the balance of the price of a works contract because of their non-conformance or when the owner had paid and taken possession of the premises but had challenged the completion of the works before and after such events (Cass. 3rd Civ., 19 January 2017, No. 15-27.205; Cass. 3rd Civ., 24 mars 2016, No. 15-14.830; Cass. 3rd Civ., 7 January 2016, No. 14-25.837). However, it does not suffice, in order to dismiss the existence of a tacit acceptance, to prove that, after payment of the price and transfer of possession, the project owner challenged the proper completion of the works (Cass. 3rd Civ., 15 September 2016, No. 15-20.143) or stated reservations (Cass. 3rd Civ., 13 July 2016, No. 15-17.208).
Cass. 3rd Civ., 18 May 2017, No. 16-11.260