Guiding principle
Claims by the buyer due to defects in the components of a photovoltaic system that the buyer has installed on an existing roof are not subject to the five-year limitation period under Section 438 (1) no. 2 b BGB, but rather the two-year limitation period according to § 438 para. 1 no. 3 BGB.
The case:
On April 22, 2004, a homeowner purchased all the individual components of a photovoltaic system from a dealer. The subject matter of the contract was only the delivery of the parts, not their installation. The owner of the house had the modules mounted on his existing roof in the period that followed. The house owner paid the agreed purchase price to the dealer.
In the course of an inspection of the PV system in the winter of 2005/2006, the expert commissioned came to the conclusion in his report dated June 28, 2006 that, among other things, "delamination" could be seen in some modules. The PV system was defective. In July 2007, the building owner filed a lawsuit against the dealer for payment of damages. The dealer raised the objection of the statute of limitations. The five-year limitation period according to § 438, para. 1, no. 2 b BGB does not apply, but rather the two-year limitation period according to § 438, para. 1, no. 3 BGB.
The judgment:
The objection of the statute of limitations raised by the dealer is effective:
According to § 438 para. 1 no. 2 letter b BGB, claims for an item that has been used for a building in accordance with its normal use and has caused its defectiveness become time-barred in five years. However, this is not the case in the dispute. The photovoltaic system installed on the roof, for the construction of which the modules were used, is not a structure in the legal sense due to its lack of connection to the ground. The only structure is the house on whose roof the solar system was installed. However, the solar modules were not used for the house. They were not the subject of renovation or reconstruction work on the house, nor are they of (essential) importance for its construction, existence, maintenance or usability. Rather, the solar panels serve their own purpose, namely to generate electricity and relieve the homeowners of financial burdens; to fulfill this purpose, the system could have been installed on any other building. The photovoltaic system has no function for the building itself, but was merely installed there because it seemed appropriate to the client.
This alone does not mean that the individual parts supplied by the plaintiff for the assembly were used "for a building" (see also BGH, judgment of May 15, 1997 - VII ZR 287/95, NJW-RR 1998, 89 under II 2 b).
Furthermore, it follows from the fact that the installation of the solar modules is not (significantly) important for the construction, the inventory, the maintenance or the usability of the house that the defectiveness of the solar modules has not also caused the defectiveness of the house.
Thus, the two-year limitation period according to § 438 para. 1 no. 3 BGB applies. The limitation period began with the handover of the PV system components to the homeowner in April 2004. His claims were therefore time-barred at the end of April 2006. The lawsuit in July 2007 was late.
Practical tip:
The court's decision is correct. A roof-mounted photovoltaic system does not constitute a building in the legal sense, since it is not firmly attached to the ground. The only building in this case is the house on which the solar modules are mounted. Therefore, as far as the statute of limitations is concerned, solar modules are to be treated the same as, for example, TV sets. Owners of solar modules who want to be on the safe side should therefore have their solar modules checked for defects in any case within two years of receipt.
Also important:
The two-year warranty period also applies as standard if the seller is responsible for the delivery and installation of a PV system. This is a purchase contract with an installation obligation (work delivery, § 651 BGB). The obligation to transfer ownership is the primary obligation; the installation services do not dominate the contract. A large part of the investment costs is for the modules, not the installation.
Reference:
BGH, judgment of October 9, 2013 - VIII ZR 318/12, preceding: OLG Frankfurt, August 22, 2012 - 16 U 14/12, LG Limburg, December 19, 2011 - 2 O 68/10
LG Mainz, judgment of December 11, 2013 - 9 O 266/12 (not yet legally binding)
Naumburg Higher Regional Court, judgment of February 20, 2014 - 1 U 86/13
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.