In the event that a solar energy system is defective, the legal categorisation of the underlying contractual relationship is important first of all.
If a contractor undertakes to supply and install an object (e.g. a solar system), the legal classification of the contractual relationship as a purchase contract (with installation obligation) or as a contract for work and labour depends on which of the two services is the main focus when viewed as a whole.
According to a judgement of the Federal Court of Justice of 03.03.2004 (Ref.: VIII ZR 76/03), the type of item to be delivered, the value ratio of delivery and assembly as well as the special features of the result owed are to be taken into account.
If this analysis leads to the conclusion that the delivery and installation of the solar energy system is a purchase contract with an obligation to install (as opposed to a contract for work and labour), the warranty rights are governed by the law on sales contracts.
In the event of a defect, the owner would then be entitled to the following statutory rights:
- Claim for subsequent fulfilment (§ 439 BGB),
- Withdrawal from the purchase contract (§ 440; § 323; § 326 para. 5 BGB),
- Reduction (§ 441 BGB) of the purchase price,
- Claim for damages (§ 437 No. 3 BGB).
As subsequent fulfilment is the primary right, the owner must first insist on subsequent fulfilment. Only if subsequent fulfilment fails because it is impossible or disproportionate, or if a deadline set for the seller expires without success, can further claims be considered.
Typical defects of a solar system are e.g:
- the system does not comply with the safety precautions stipulated by the lightning protection standard DIN EN 62305,
- the lightning protection equipotential bonding is not available,
- The installation of the solar system does not meet the necessary standards or safety precautions (fire hazard),
- The PV system is shaded, resulting in a reduction in yield (or yield difference)
- there is a general difference in yield compared to comparable systems.
However, in order to claim subsequent fulfilment, the defects must be precisely specified. As it is often difficult for a layperson to recognise or describe the defectiveness of a solar installation, it is therefore advisable to have the defects precisely identified in a private expert report.
However, the problem here is that the owner of the solar installation would then be left with the costs of such a private expert opinion and such a private expert opinion would only be recognised as a party submission in court proceedings.
A good alternative is therefore the independent evidence procedure, in which the costs of the expert opinion to be prepared would be divided between the parties depending on the existence of the errors.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.