Contracting and Defects in Works: Acceptance Does Not Always Exclude Warranty. Analysis of Ordinance 17028/2025

In the complex world of civil law, particularly in the field of contracts, one of the most debated issues concerns the scope and limits of the warranty for defects and flaws in works. It is often mistakenly believed that the client's acceptance of the work can automatically preclude any future dispute. However, Italian jurisprudence, and in particular the Supreme Court of Cassation, has repeatedly clarified the boundaries of this delicate matter. A recent and significant intervention is represented by Ordinance No. 17028 of June 25, 2025, issued by the Second Civil Section of the Court of Cassation, with President M. B. and Rapporteur T. M., in the case that saw C. versus V.

This ruling offers fundamental insights for understanding when and how a client can assert their rights even after formally accepting the work. Let's delve into the content of this decision and its practical implications.

The Contract of Works and Fundamental Warranties

The contract of works, governed by Article 1655 et seq. of the Civil Code, is the legal agreement whereby one party (the contractor) undertakes to carry out a work or service on behalf of another party (the client), in exchange for monetary compensation. It is a contract that implies considerable trust between the parties, but which, precisely due to its complexity, can give rise to disputes regarding the quality of the work.

The Civil Code provides various forms of protection for the client:

• Articles 1490 and 1495 of the Civil Code: These provisions, although established for sales, are often invoked analogously or as general principles for contracts of works, particularly for defects and flaws that render the item unfit for use or appreciably diminish its value.
• Article 1669 of the Civil Code: This is the specific and fundamentally important provision for contracts of works, which provides a ten-year warranty for the ruin and serious defects of buildings. It applies when the work, due to a defect in the soil or a construction flaw, collapses in whole or in part, or presents an evident danger of collapse or serious defects.
• Article 1667 of the Civil Code: This governs the warranty for discrepancies and defects in the work, establishing that the contractor is liable for the warranty if the client has not accepted the work or if, upon acceptance, the defects were hidden or fraudulently concealed.

The crucial point often lies in the interpretation of the act of acceptance of the work, as clearly highlighted by the ruling under review.

Acceptance of the Work: When Does It Preclude the Warranty?

Article 1665 of the Civil Code states that the client has the right to inspect the work before receiving it and that, upon delivery, the work is considered accepted if the client does not raise any reservations. Acceptance, in principle, releases the contractor from the warranty for defects and discrepancies recognizable by the client at the time of inspection.

However, the Court of Cassation, with Ordinance No. 17028/2025, has reiterated a fundamental principle that protects the client in specific situations. The Court of Appeal of Florence, in the judgment that was quashed and remanded, had evidently adopted a more restrictive interpretation of the warranty, which was corrected by the Supreme Court.

For acceptance to be capable of precluding the warranty for defects and flaws under Articles 1490 and 1495 of the Civil Code and the warranty pursuant to Article 1669 of the Civil Code, acceptance must normally occur upon completion of the work, at the time of delivery of the property, in relation to defects already perceptible at that time and/or already manifested, while the possibility remains, for construction defects and discrepancies that emerge subsequently, to resort to the warranties provided, respectively, for real estate sales or contracts of works.

This maxim is of paramount importance. The Court of Cassation clarifies that the acceptance of the work, to be "capable of precluding the warranty," must exclusively concern those defects and flaws that were already perceptible or had already manifested at the time of delivery of the property. This means that acceptance cannot extend to so-called "hidden" defects or those that only manifest at a later time after delivery. The logic is clear: one cannot accept what is not known or cannot be known with ordinary diligence. This interpretation safeguards the client from situations where serious structural or construction defects, not immediately evident, may only emerge after some time, preventing the contractor from evading their responsibilities. The ruling essentially reiterates that the warranty for hidden or subsequent defects remains intact, allowing the client to take action even years after formal acceptance, within the limits of the prescription periods provided for the different types of warranty.

Distinction Between Apparent and Hidden Defects

The key to interpreting Ordinance 17028/2025 lies in the distinction between apparent and hidden defects:

• Apparent Defects: These are defects easily recognizable by a client exercising ordinary diligence at the time of inspection and delivery of the work. For these, acceptance can indeed preclude the possibility of subsequent disputes.
• Hidden Defects: These are defects not immediately perceptible, which require in-depth investigations or which only manifest with the use of the property or the passage of time. For these, the contractor's warranty persists even after acceptance.
• Defects Emerging Subsequently: This category includes defects that, although not concealed, only become apparent after a certain period from the completion of the works, such as serious leaks or structural collapses. For these, Article 1669 of the Civil Code offers a ten-year protection.

It is essential that the client, once the presence of hidden or subsequently emerging defects is discovered, proceeds to report them to the contractor within the legal time limits (60 days from discovery for defects under Article 1667 of the Civil Code, one year from discovery for serious defects under Article 1669 of the Civil Code, and in any case within 10 years from the completion of the work for the latter).

Conclusions

Ordinance No. 17028 of 2025 by the Court of Cassation reiterates a principle of justice and common sense, fundamental for the protection of the client in contracts of works. The acceptance of the work cannot be interpreted as a "general release" for the contractor, especially when it comes to defects that could not have been reasonably identified at the time of delivery. This means that clients have a robust tool for protection to assert their rights even after a considerable time, provided they comply with the reporting and prescription periods.

To avoid unpleasant surprises and to best manage disputes relating to defects and flaws in contracts of works, it is always advisable to seek the assistance of experienced legal professionals. Adequate advice can make the difference between protecting one's investments and losing valuable rights, ensuring that the work carried out fully meets expectations and legal requirements.