The yields of your photovoltaic system are falling short of expectation: what could be the reason?

Before you contact plant constructors or manufacturers, you should first clarify if the output actually low, or if your expectations are too high. However, if there is a reduced output, this article will give you an overview of your legal rights.

First, you should clarify who is responsible for the reduced output. Here, various contractual relationships and thus different rights and obligations come into consideration.

Basis for claims

In the case of an incorrect forecast: check whether the underperformance is due to incorrect calculations or promises made by the project/project rights seller. Prospectus liability claims must also be examined here.

In the case of a faulty installation: if the contractor has provided faulty services and this results in a reduced performance of the plant, the contracts for work and services at least give rise to warranty claims. Following the laws applicable on sales and contracts for work and services, warranty claims are legal provisions on liability for defects.

It is not possible to deviate from the legal warranty rights by contractual agreement without further ado – relevant clauses are invalid. Therefore, if you assume a defect, you can demand the so-called supplementary performance, i.e. repair or replacement, from your contractual partner.

If he does not do this within a set, reasonable period of time, you may under certain circumstances withdraw from the purchase or demand a reduction in the purchase price.

For defective system parts: the purchase law contains warranty rights which must be considered. In addition, the sellers sometimes also offer photovoltaic guarantees. In contrast to warranties, photovoltaic guarantees are voluntary promises or obligations of the guarantor.

In the case of photovoltaic guarantees, however, it must always be checked whether these are mere promises or genuine guarantees with special rights resulting from them.

What is the procedure in case of a defect?

The first step is to identify the type of contract that covers the defect.

In the case of a contract for work and services, the contractor must always first be given the opportunity to remedy the defect, setting a deadline for the remedy. If this procedure does not lead to success, the contract can be terminated in the event of significant defects or default on the part of the contractor.

If claims are made against the seller or manufacturer of the solar system, and a sales contract has been concluded, the buyer can initially only demand supplementary performance by setting a deadline and then, if necessary, withdraw from the contract.

What to urgently pay attention to?

As the buyer of a PV system, you must ensure that you, as a merchant, are obliged in accordance with § 377 HGB (German Commercial Code) to check the delivered parts, components, etc. for completeness and other faultlessness immediately in connection with the delivery.

This also includes, for example, possible transport damage. If you do not comply with this obligation and if you do not give notice of visible damage, defects or incompleteness, all claims against the seller/manufacturer are excluded according to § 377 HGB. In individual cases, the results of this rule can be very drastic.

What is the limitation period for the warranty?

According to § 438 para. 1 no. 3 BGB (German Civil Code), a warranty period of two years applies to sales contracts. With regard to the performance of the building contractor, a limitation period of five years applies in accordance with § 438 Paragraph 1 No. 2 BGB, insofar as the PV system is to be qualified as a building.

In the event that the Contracting Rules for the Award of Public Works Contracts (VOB/B) are agreed in the contract, which contain special provisions for construction contracts, a warranty period of only four years is usually agreed (§ 13 Para. 4 No. 1, p. 1 VOB/B). However, despite agreement of the VOB/B, other warranty periods may also be agreed in the contract.

If the system comes from the investor, malfunctions of the system can quickly lead to so-called interface problems, which make it impossible to correctly determine the source of a defect. However, the often-disputed question of who is responsible for the defect (seller/manufacturer or contractor) determines whether a two-year or five-year warranty period applies.

Every plant constructor or otherwise involved person is best advised to obtain comprehensive advice from a lawyer in advance regarding his rights and obligations under the respective contract, the possible consequences, and the applicable provisions.

Even for experienced businessmen who are not completely unfamiliar with the legal subject matter, there are considerable risks due to the subtleties that have to be taken into account if they carry out the process on their own in ignorance of the consequences under liability law.

Experienced advisors can reduce the risks to a minimum for you in a short time with simple concepts and an expert eye.

This article is a free translation from the article created with the kind support of attorney Benjamin Bernhard, ZMUDAbernhard Rechtsanwälte.

To read the original version (in German): here.