The Concept of Assembly in Law
Assembly is a term with a wide range of legal implications, extending from industrial assembly work to construction law issues and specific provisions in contract law. Its definition, legal classification, and associated obligations and rights vary depending on the area of law and field of application.
1. Definition and Distinction
1.1 General Definition
In legal terms, assembly refers to the joining, construction, or installation of components, assemblies, machines, or systems. The term encompasses both the mechanical assembly of prefabricated parts and the complete erection of complex installations on site. Assembly may be relevant in industry, construction, mechanical engineering, and other technical sectors.
1.2 Distinction from Related Terms
In German law, assembly is distinguished from terms such as ‘Werklieferung’ (contract for the supply of goods to be manufactured or produced), ‘Werkleistung’ (contract for work and services), and ‘Bauleistung’ (construction services). While ‘Werklieferung’ involves the production and delivery of a movable item, assembly primarily describes the activity of putting together or installing in an operational state, often outside the manufacturer’s premises.
2. Legal Classification of Assembly
2.1 Assembly Contracts in the German Civil Code (BGB)
An assembly contract is generally classified as a contract for work and services pursuant to Sections 631 et seq. BGB. The objective here is the creation of a specific assembly result, so the contractor responsible for the assembly must provide proper construction or installation of a work. Sometimes, assembly is considered as part of a purchase contract with assembly obligation according to Section 650 BGB, for instance when machines are sold and assembled by the seller.
2.2 Law on Contracts for Work and Services and Assembly
2.2.1 Obligations in an Assembly Contract
The assembly contractor is obliged to perform the assembly free from material and legal defects and in accordance with the generally accepted rules of technology. Safety regulations, hygiene provisions, and specific standards (e.g., VDE guidelines for electrical installations) must be observed.
2.2.2 Acceptance and Transfer of Risk
The acceptance of assembly services (Section 640 BGB) is a central moment. Upon acceptance, the risk typically passes and the payment becomes due. Any rights relating to defects are governed by the provisions in Sections 634 et seq. BGB. Especially for assembly contracts, specifying the terms of acceptance is crucial to ensure clarity regarding the transfer of risk.
2.2.3 Liability for Defects in Assembly Services
In the event of assembly defects, the general law on contracts for work and services applies. There are claims for subsequent performance, damages or reduction of the price. The limitation period may differ depending on whether the assembled item is movable or immovable and based on contractual agreements.
2.3 Assembly in Construction Law
Assembly services in construction, such as erecting prefabricated houses or installing elevators or air conditioning units, are governed by construction contract law (Sections 650a et seq. BGB). Additional obligations may arise here, such as compliance with construction regulations, public law approvals, and safety requirements. The client’s duty to cooperate, particularly regarding site preparation, is of particular importance.
3. Assembly and Public Law Provisions
3.1 Building Law Regulations
When installing systems, machines, or prefabricated elements on properties, public law approvals under the respective state building code are required. Certain assembly work may be subject to a building permit requirement. In addition, occupational health and safety and environmental protection regulations must be observed.
3.2 Occupational Health and Safety Law
Numerous occupational health and safety regulations apply to assembly work, especially on construction sites — for example, the Occupational Health and Safety Act (ArbSchG), the Construction Site Ordinance (BaustellV), and other technical standards. Particularly important are rules on accident prevention, the use of assembly scaffolding, and the safety of persons at the assembly location.
3.3 Product Safety Act and Assembly
Assembled products are often subject to the Product Safety Act (ProdSG). The assembly contractor may have their own responsibilities regarding the safety of the assembled systems or components. This is especially relevant if a product only becomes ready for use and marketable after assembly.
4. International Aspects of Assembly
4.1 Assembly and VAT Law
In a cross-border context, such as the delivery and assembly of machines in other EU member states or third countries, special VAT regulations must be observed. The crucial factor is whether the transaction constitutes a ‘Werklieferung’ (supply and installation of goods) or another type of service, as this determines the place of taxation.
4.2 Assembly under International Agreements
When assembly is performed abroad, particularly in the case of so-called cross-border assembly assignments, corresponding country- or EU-specific regulations — such as licensing obligations or notification requirements for posted workers — may become relevant.
5. Insurance and Liability in Assembly
5.1 Insurance Obligations
The assembly contractor typically bears the risk until the work is accepted; therefore, taking out assembly insurance is recommended. This covers risks such as assembly errors, theft, or damage during the assembly phase.
5.2 Liability Issues
Liability for assembly services arises from the contract, especially the general law on contracts for work and services and, where applicable, from the Product Liability Act if personal injury or property damage occurs due to assembly errors. In the case of public law requirements, fines or criminal prosecution may also be threatened.
6. Special Forms of Assembly
6.1 Prefabricated Assembly
The assembly of prefabricated elements, such as in industrial housing construction, involves specific legal requirements. In addition to the regulations on contracts for work and services, construction regulations and warranty obligations regularly apply.
6.2 Assembly of Installations and Machines
The assembly of complete installations or machines typically requires technical approvals, safety inspections, and, if necessary, official acceptance. In particular, CE marking and documentation procedures for proper commissioning are mandatory in this context.
6.3 Dismantling and Deconstruction
Dismantling or deconstruction of installations is often legally comparable to assembly but has its own requirements, such as with regard to the disposal of materials and proof of proper completion.
7. Summary
Assembly is a legally complex and multifaceted concept that takes on different meanings and effects in various contexts. The relevant legal framework ranges from regulations pertaining to contracts for work and construction law, through questions of liability and insurance law, to public law requirements and international aspects. For contracting parties, careful drafting of assembly terms and early identification and avoidance of legal risks are essential to ensure proper and legally secure execution of assembly services.
Frequently Asked Questions
Who is liable for defects after assembly?
For defects that occur after assembly, the company that performed the assembly work is generally liable within the scope of the statutory warranty under the German Civil Code (BGB), unless an exclusion or another provision has been validly agreed upon. Liability primarily includes the duty to subsequent performance, i.e. the free rectification of defects, or — if this fails — replacement delivery. As a rule, the warranty period for assembly services is two years from acceptance of the work (§ 634a (1) No. 1 BGB). However, if the defect occurs because the material provided by the client was defective or the plans provided by the client were incomplete or incorrect, the assembler is only partially or not at all liable, provided they could not have recognized the defect or fulfilled their inspection obligations. In the case of the assembly of purchased items (‘assembly contract’ under § 650 BGB), special regulations apply, especially regarding responsibility for a functioning overall result. Additionally, the assembler may also be liable in tort, for instance in cases of culpable damage to other legal interests during assembly.
Does the client have to be present during assembly?
Legally, the presence of the client during assembly is not strictly required unless the contract expressly provides for specific cooperative obligations (e.g., enabling access to premises or conducting special preparatory measures). If the client does not fulfill their duty to cooperate, this may cause delays and, where applicable, entitle the assembler to claim compensation for resulting extra expenses (§§ 642, 643 BGB). After the assembly is completed, the client should promptly carry out a formal acceptance; this can also be done by a representative. Acceptance is a key moment, as it triggers the warranty period and shifts the burden of proof for defects to the client. Although there is no obligation for the client to be physically present during assembly, written communication and, if necessary, documentation are recommended for legal protection.
What rights does the customer have if assembly is delayed?
If delays occur during assembly, the client is entitled to various statutory rights. Initially, if a binding assembly date was agreed upon and this is missed, the client may urge the assembler to complete the work and set a reasonable grace period (§ 323 BGB). If assembly is still not carried out within this period, the client is entitled to withdraw from the contract and/or claim damages. In the event that delays are due to the assembler’s fault, the client may also have a direct claim for compensation for incurred additional costs or damages (§ 280 BGB). In individual cases (e.g. in cases of significant delay and unreasonableness), immediate termination or withdrawal may be possible. For deadlines that were not expressly agreed as ‘fixed dates’, milder standards apply to client claims. It is always important that the delay is complained of in good time and in a provable manner.
What must be considered for assembly services provided to consumers?
When assembly services are provided to consumers, numerous consumer protection regulations must be observed. These include, in particular, the right of withdrawal for contracts concluded outside business premises or so-called distance contracts (e.g. online orders with assembly), in accordance with §§ 355, 356 BGB. In addition, statutory minimum warranty periods apply for consumers without the possibility of contractually shortening them, as well as certain burden-of-proof rules: If a defect is discovered within the first twelve months after acceptance, it is presumed that it already existed upon acceptance (§ 477 BGB). It is mandatory by law to inform the consumer of the existence of the right of withdrawal, to provide price information including all ancillary costs, and to provide a complete copy of the contract. Limitations or exclusions of liability are often invalid or only partially permissible in contracts with consumers.
When is assembly deemed legally accepted?
Assembly is deemed legally accepted when the client accepts the assembly work as substantially in accordance with the contract, either expressly (e.g. by signing an acceptance protocol) or implicitly (e.g. by putting the assembled item into operation). According to § 640 BGB, acceptance is a pivotal legal act: it results in the transfer of risk (e.g. for damages) to the client, triggers the due date for payment, and shifts the burden of proof for defects to the customer. So-called ‘acceptance effect’ may also occur if the client does not respond within a reasonable period set by the contractor for acceptance and has not asserted any significant defects. Formal acceptance is more legally secure and should always be documented.
What duties does the assembler have with regard to safety regulations?
Under legal requirements, the assembler is obliged to comply with all relevant safety regulations, standards, and accident prevention requirements (e.g. from professional associations or DIN/EN standards). This includes the careful selection and correct use of tools, machines, and assembly materials as well as the implementation of structural requirements (e.g. fire protection, statics). Violations may result not only in strict liability under the Product Liability Act or BGB, but also in fines or criminal consequences for the company and its employees. In the event of damage, this may also affect insurance benefits, especially if gross negligence is established. The assembler is also obliged to eliminate hazards for the client and third parties as far as possible and to inform them of any residual risks.
What are the legal consequences of self-assembly by the customer?
If the customer chooses to assemble the product themselves, i.e. carries out the assembly on their own or instructs third parties, all claims against the dealer or manufacturer under the assembly contract lapse. Claims for defects arising from improper assembly do not apply to the seller, unless the assembly instructions were incorrect or incomplete (§ 434 (2) sentence 2 BGB). In the case of resulting damages or functional impairments, the customer bears the burden of proof to show that the defect was present at delivery and was not caused by self-assembly. Taking over assembly may also void certain warranty claims if provided for in the warranty terms. In any case, proper documentation and compliance with all manufacturer specifications should be ensured.
