Ask a lawyer on the topic of Contract law

Order without invoice - acceptance obligation

November 25, 2011 | 25,00 EUR | answered by Bernhard Müller

Dear Sir or Madam,

Regarding the situation: A is a valued long-term private customer of B, who, due to liquidity problems in his company at the time of ordering in 2009, had to downsize or close his business as he needed financial state support. B offered A to create the order "under the table" without an invoice due to his financial situation. There is no written agreement between A and B. The craftsmanship was completed and ready for pickup. Material costs were paid in advance by A. The fee was 900 euros. A was not particularly pleased with the result of the work, but did not communicate this. A noticed that B did not put much effort into the production due to his business situation. A argued with payment difficulties, B understood and waited, verbally reminded, but to this day A has not accepted the work and has not responded.

Additional information: A has now discovered to his dismay that B has posted an unauthorized image of A on his website, showing A with a work produced by B with a facial shot. The image was taken under the assurance that A may document his work for his portfolio. A never agreed to make it accessible to third parties and was never asked for permission.

Question: What is the legal situation? Does A have to accept the work, and what are his options?

Bernhard Müller

Dear inquirer,

A contract for work and services according to § 631 BGB was concluded between A and B. This contract is valid even if it was concluded orally. A is obligated to accept the work according to § 640 BGB and to pay according to § 632 BGB.

However, this requires that the work was produced free of defects. If the work has defects, A can demand rectification, have the defects removed at B's expense, withdraw from the contract, or reduce the payment (§634 BGB).

However, it is not sufficient that A does not like the work. He should have indicated which defect he believes is present.

The fact that he did not do this but pretended to have payment difficulties could, under certain circumstances, amount to acceptance through implicit action. This would mean that it is presumed that the work was free of defects and A must now prove that defects actually existed. If he fails to do so, he must pay the 900 euros.

He can sue B for injunction due to the unauthorized use of the image.

Yours sincerely,

Bernhard Müller Attorney