By Andreas Kleefisch, Lawyer
Current legal status:
Through its VIII. Civil Court of Appeal, the Federal Court of Justice has time and time again ruled since its verdict from March 3, 2004 that the contractually agreed upon delivery and assembly is in essence a purchase contract (with binding delivery and assembly obligations) and that a rooftop installation does not qualify as a building construction (lately BGH IBR 2014, 110). For the first time now, the VII. Senate of the Federal Court of Justice had to decide on a PV case – and promptly declared the opposite opinion.
In its decision from June 2, 2016 (VIII ZR 348/13) regarding a PV plant that was firmly affixed to the roof of an indoor tennis court – and whose electricity was not even used for the tennis court – the court applied not only the common “contract law for work and labour” but also decided that it constitutes a major reconstruction of the tennis court and the PV plant consequently becomes part of the building. The operator’s claim for reduction due to underperformance was thus sustained.
It is obvious what this mean for the “Solarteure” who survived the crisis and are still alive and kicking today: no matter which contractual basis they chose at the time, they cannot be certain that they will be relieved of their warranty obligations after the 2-year period these days. However, this fact is much more interesting to manufacturers and wholesalers respectively brokers of modules, inverters, mounting materials, cables and substructure – also known as “PV Equipment”. Until now, they could rely on the law, the jurisdiction and the general terms of conditions which all adhered to a 2-year warranty period in a sales contract.
Most likely that will have changed too with the above verdict, although the VII. Senate of the Federal Court of Justice probably did not think of it at the time: since PV Equipment materials are commonly found in building constructions and those caused the flaw regarding the construction “PV plant”, the warranty statute of limitation now falls under § 438 Abs. 1 No. 2b) BGB. This has applied to ground-mounted/free-standing PV systems for a while already since they fall under the category of a building construction according to the current jurisdiction (since the OLG Bamberg verdict from January 12, 2012 – 6 W 38/11).
If the jurisdiction of the VII. Senate of the Federal Court of Justice asserts itself, all kinds of PV plant designs, components and auxiliary means will be viewed as construction materials since they are clearly used for rooftop installations or ground-mounted PV systems. On top, this also goes for modules and inverters which are logically also utilised for the above PV systems.
Conclusion regarding the supply chain:
Typically, the general terms of delivery and service of sales contracts between manufacturer and wholesaler respectively wholesaler and broker include regulations that state a 2-year warranty period for the articles “modules, substructure and inverters”. However, if the recent verdict by the Federal Court of Justice prevails and if any PV plant is being classified as part of a building construction going forward, the legal warranty period will be extended to a 5-year duration according to § 438a Abs. 1 No. 2 b BGB. A vendor’s regulation which covers only 2-years under the general terms of conditions would then constitute an inadmissible disadvantage to the customer according to § 307 Abs. 2 BGB and thus be considered invalid. In that case the customer could refer to a legal warranty period of five years.
Rechtsanwalt Andreas Kleefisch
BAUMEISTER Rechtsanwälte Partnerschaft mbB, Münster (Westfalen)
Fachanwalt und Lehrbeauftragter (FH) für Bau- und Architektenrecht
Board Member of QVSD e.V.(Qualitätsverband Solar- und Dachtechnik)
ADLER Solar starts Corporate Social Responsibility Programme – long-term sponsorship of the“Campus Prize“ awarded by the KELLNER & STOLL Foundation as a kick-off
The new ADLER Solar Corporate Social Responsibility (CSR) programme aims to bring the idea of sustainability – an integral element of its company philosophy – to life, turning it into an accessible and tangible concept. Furthermore, ADLER Solar wants to contribute in general to the society we live in. It was with these objectives in mind that we decided to commit to a new CSR cause:
ADLER Solar is now a long-term sponsor of the annual „Campus Prize: Research for a sustainable future“ awarded by the KELLNER & STOLL Foundation for Climate and Environment. The charitable foundation is committed to sustainable development, working to stimulate education, science and development while simultaneously highlighting the importance of protecting our environment, climate and resources in each of these fields. The Campus Prize – an award devised by the KELLNER & STOLL Foundation together with the University of Bremen and the Bremen Leibniz Centre for Tropical Marine Ecology – is presented to exceptional emerging scientists planning research that will contribute to the sustainable use of resources, and help to protect the environment, climate and oceans.
Dr Rita Kellner-Stoll and Reiner Stoll from the foundation explain: „Sustainable development not only requires the expertise that we, as a foundation, help to nurture, but also coordinated local efforts on the ground. The fact that ADLER Solar is supporting the Campus Prize through its sponsorship is an excellent example of both of these prerequisites in action“.
„At ADLER Solar, we want to shape a sustainable future and help to protect our environment as well as climate – and that can only be achieved by starting with ourselves, based on the principle of ‚think global, act local‘. Our PV-service portfolio makes an important contribution to the increasing share of society’s energy supply that is now being generated from renewable resources, specifically solar energy. So it was a logical next step for us to take our CSR programme in this direction too“, adds Gerhard Cunze, Executive Partner of ADLER Solar.
Minimising yield losses by means of quick, professional damage repair
More than 1.5 million photovoltaic plants have been installed in Germany in the past ten years. During that time, the components have kept on developing. They are exposed to various meteorological effects in all seasons and are expected to provide plant operators with green electricity for at least twenty years. Meanwhile, damages to photovoltaic plants play a considerable part in the portfolio of insurance companies.
Quick, professional damage repair minimises yield losses and restores the security of your photovoltaic plant. Our time-tested process covering everything from claim management to damage repair can minimise restoration time and costs. Many insurance companies throughout Germany are already using our customized service solutions.
ADLER Solar offers you services from a one-stop shop for damages to photovoltaic plants:
The modular solution package includes:
- Appointment for evaluation of the situation on site
- Inspection and, if needed, repair of PV modules and inverters
- Offer to overhaul the damage with a clear distinction between current damage and any already existing defects
- Professional execution
For further information, please contact Marco Thesing.
tel. +49 421 83 57 01 00
Meet us at the 17th Forum Solarpraxis Neue Energiewelt 2016
ADLER Solar will participate as gold sponsor in the expert meeting of the solar branch on November 10 th/ 11th in Berlin.
Meet our staff members as well as executive management and arrange your personal appointment!
For further information, please contact our Sales Director Claas Oltmann and team.
We look forward to hearing from you!
Our Sales Director, Mr. Claas Oltmann, and his team are waiting to answer your inquiries.
tel. +49 421 83 57 01 00