authors: Przemysław Kałek, Krystian Andrzejewski
This article was published in the supplement PROSUMER – (free supplement to issue 3/2020 of Magazyn Fotowoltaika, 2nd ed.)
The manufacturer’s declared average lifetime of photovoltaic systems, allowing them to operate at an effective level of 80-85% of their baseline performance, is about 25 years. However, it may happen, whether due to defects in the PV system’s components or because of poor workmanship when installing the PV system, that before the end of this period the efficiency level drops significantly below expectations, or the whole PV system or its individual components fail, which failure prevents its proper operation.
What can the prosumer do if this happens? First of all, the prosumer should exercise his or her rights under the manufacturer’s warranty (“warranty”) or statutory warranty. If the defects of the PV system are due to circumstances because of which the removal of these defects would be beyond the scope of the statutory warranty or warranty, or if the defects arise after the warranty and statutory warranty have expired, it will be advisable to make an insurance claim, if the PV system has been insured.
Types of warranty and the scope of rights under the warranty
The scope of warranty rights depends largely on the type of warranty. Manufacturers of photovoltaic modules usually offer two types of warranty: (1) product warranty, and (2) performance warranty. The product warranty covers manufacturing defects that are directly inherent in the components of the PV system. The performance warranty, on the other hand, covers deterioration in module performance in the situation where the performance level is significantly lower than declared by the manufacturer. In addition to these two types of warranty, there is also the manufacturer’s inverter warranty and the installer’s workmanship warranty.
The specific claims that the prosumer can make if a defect is found during the warranty period are those resulting from the statement made by the warrantor (manufacturer) (so-called warranty certificate), but legal regulations do not specify what rights exactly should result from the warranty statement and so the warrantor has discretion in formulating them. Article 5771 of the Civil Code regulates only the way in which the statement is worded and its minimum content. The warrantor should formulate the warranty statement in a clear and understandable way, and when the type of information allows it, in a commonly understood graphic form. The warranty statement should contain basic information necessary to exercise the rights under the warranty, in particular: (1) name and address of the warrantor or its representative in the Republic of Poland, (2) duration, and (3) territorial scope of the warranty cover, (4) rights that may be exercised if a defect is found, and (5) statement that the warranty does not exclude, limit or suspend the buyer’s rights resulting from the legal provisions on the statutory warranty for defects of the item sold.
Most often, the buyer has the right to demand repair of the defective component of the PV system or its replacement with a defect-free component. Pursuant to Article 577 § 2 of the Civil Code, the warrantor’s obligations may be, in particular, to return the price paid, replace the item or repair it and provide other services. Moreover, § 3 of this provision states that if the warranty has been granted with respect to the quality of the item sold, if there are any doubts it is understood that the warrantor is obliged to remove a physical defect of the item or to deliver a defect-free item if such defects are found during the warranty period.
However, whether it is possible to pursue warranty claims often depends on the fulfilment of a number of conditions which, if neglected, may result in a loss of the warranty. These conditions usually include the obligation to carry out regular inspections of the PV system. Warranty claims may also be forfeited as a result of failure to follow the PV system’s operation manual during the period of its use, or if the buyer makes repairs on his own. As a rule, the warranty covers, as follows from Article 578 of the Civil Code, defects arising due to reasons inherent in the item sold, unless stipulated otherwise. This means that most often the warranty will not cover the situations where the defects arise due to damage caused by the prosumer or a third party, or due to other external events beyond the control of the warrantor (e.g. damage to the modules as a result of hail or fire not having its source in the PV system itself).
So what should be done if defects are found that interfere with the normal operation of the PV system? First of all, the prosumer should immediately notify the installer or the manufacturer. Often the possibility of exercising warranty rights depends on whether the warrantor has been notified of them within a specific period of time (e.g. 14 days from the day when the defect is found) or otherwise the rights are forfeited. Although such clauses should not be applied to prosumers as they raise doubts as potentially abusive clauses, prompt notification of a defect to the warrantor may help to determine the cause of the defect. The prosumer should not try to remedy the defect on his own, as this may also result in a loss of warranty rights. The best solution is to secure the PV system in such a way that the warrantor is able to determine during an inspection how the defect has arisen and whether it will be reasonable to repair the defective components or replace them with defect-free ones.
The entity to which a warranty claim should be made depends on what the defect concerns and under what circumstances it arose. If the cause of the defect in the PV system is defective workmanship, the prosumer should make the claim to the installer. If the defects are due to reasons inherent in the components of the PV system after they have been delivered by the installer, the prosumer may make claims either to the installer or to the manufacturer, depending on the terms of the warranty. However, since the manufacturers’ warranty certificates are usually handed over by the installers immediately after the final acceptance of the PV system, it will be reasonable to make claims directly to the manufacturer in this case. If the installer only installs the components purchased by the prosumer and the defects concern directly these components, warranty claims should be made to the manufacturer. The basis for making a complaint should be: the warranty certificate, proof of purchase or proof of installation of the PV system.
Statutory warranty for physical defects
In addition to the rights under the manufacturer’s warranty, the seller (installer) of the PV system is also liable to the prosumer under the statutory warranty. This results from Article 579 § 1 and Article 638 § 1 of the Civil Code. The buyer may exercise his or her rights under the statutory warranty for physical defects of the item regardless of the rights resulting from the warranty. The exercise of rights under the warranty does not affect the liability of the seller (installer) under the statutory warranty.
The liability of the seller (installer) under the statutory warranty covers physical and legal defects. The rights of the buyers in relation to the above are provided for in Articles 560 and 561 of the Civil Code. These rights, with some exceptions, mainly concern the request to replace the defective item with a defect-free item or to remove the defect. The buyer may also submit a price reduction statement or even a statement on withdrawal from the contract, unless the seller (installer) immediately and without significant inconvenience to the buyer replaces the defective item with a defect-free item or removes the defect. It is also worth noting that if the buyer is a consumer, he or she may, instead of the defect removal proposed by the seller (installer), demand replacement of that item with a defect-free item, or may demand removal of the defect instead of replacing the item, unless bringing the item into conformity with the contract in the manner chosen by the buyer is impossible or would require excessive costs compared to the manner proposed by the seller (installer). In the case of consumers, the seller (installer) is obliged to respond within 14 days to the request to replace the item or remove the defect or to the price reduction statement. Failure to respond to these requests or statements will result in their recognition as justified.
Another provision important from the point of view of claims made to sellers (installers) of PV systems is Article 5611 of the Civil Code. According to this provision, if a defective item has been installed, the buyer may demand that the seller (installer) dismantle and reinstall such an item after it has been replaced with a defect-free item or after removal of the defect. If the seller (installer) fails to comply with this obligation, the buyer is entitled to do so at the expense and risk of the seller (installer). If the buyer is a consumer, the buyer may demand that the seller (installer) dismantle and reinstall the item, but it is obliged to bear part of the associated costs which exceed the price of the item sold or may demand that the seller (installer) pay part of the costs of dismantling and reinstallation, up to the price of the item sold.
Liability under the statutory warranty for physical defects depends on when the defects or causes that have led to these defects occurred. In accordance with Article 559 of the Civil Code, the seller (installer) is liable under the statutory warranty for physical defects that existed at the time when the risk passed to the buyer or resulted from a cause inherent in the item sold at the same time. The seller (installer) is liable under the statutory warranty if a physical defect is found before the expiry of 2 years after the date of handing over the item to the buyer.
Liability under the statutory warranty may also be modified. Pursuant to Article 558 § 1 of the Civil Code, the parties may extend, limit or exclude liability under the statutory warranty. However, if the buyer is a consumer, the limitation or exclusion of liability under the statutory warranty is permitted only in some cases set out in specific provisions.
PV system insurance
If a PV system is damaged or destroyed as a result of external circumstances beyond the control of the manufacturer or installer, the removal of such damage will not be possible under the warranty (if the warranty does not cover such cases) or statutory warranty. In such a case, it may be necessary for the prosumer to incur certain expenses in order to make the PV system fully operational again. However, the owners of PV systems that have been insured may be reimbursed for such expenses under their insurance policies. In the current market realities, an insurance policy is often provided by sellers of PV systems as an element complementary to their offer. The insurance usually provides coverage against the consequences of damage to the PV system caused by unforeseen random events, such as atmospheric phenomena (e.g. hail or heavy storms) or acts of vandalism or theft. The insurance may also cover potential losses in energy production, i.e. situations where the PV system has produced less electricity than expected, or financial losses resulting from interruptions in the operation of the PV system. In such cases, the prosumer should make a claim to the insurer to compensate for the losses resulting from the insured events. The insurer should, within the limits of the sum insured, pay the injured party appropriate compensation or reimburse documented costs of repairing the PV system. Depending on the type of damage suffered, its extent will be determined on the basis of: the cost of repair or purchase price of new components of the PV system, the cost of dismantling and reinstallation of damaged components and the cost of their transport.
Basic information on the use of the statutory warranty, warranty and insurance of prosumer PV systems