Minimise contractual risks: The central role of clear regulations on the start of regular payments in usage contracts

The precise wording of general terms and conditions (GTC) is of crucial importance in the practice of tenancy law and in particular for long-term tenancy agreements in the renewable energy sector. A recent judgement illustrates the considerable risks that can be associated with imprecisely worded contractual clauses.

The specific case concerns the interpretation of general terms and conditions in a rental agreement for a photovoltaic system. It shows that unclear contractual provisions can be interpreted to the detriment of the tenant who drafted the standard contract and submitted it to the owner. This article highlights the key aspects of the ruling and draws conclusions for minimising risks in future contract drafting.

The verdict

The BGH verdict from 2021 dealt with the question of the tenant's obligation to pay for a photovoltaic system. In this case, the tenant was the company that had drawn up the GTC and the landlord was a consumer. The parties to the dispute were arguing about when the tenant was obliged to pay the rent. The PV system had already been installed at the time the contract was concluded, but was never put into operation afterwards.

The rental agreement provided for a 10-year contract term ‘from commissioning’ of the system. The contract did not contain any further provision regarding the due date of the rental payments. The BGH therefore considered the agreement on the rental period to also be an agreement on the start of payment and examined this provision in detail.

§ 308 (1) sent. 2 BGB must be taken into account when agreeing the time of payment in GTCs. According to this, a performance period is only sufficiently defined if the contractual partner of the GTC user can determine the due date without any particular effort or expense. This is the case if the deadline depends on an event that can be influenced by the contractual partner of the GTC user (in this case the landlord). On the other hand, the performance period can no longer be calculated if it depends exclusively or additionally on an event in the sphere of the user of the GTC (in this case the tenant).

Firstly, there was no reference to the EEG, in which commissioning is specifically defined. For this reason, the court refused to interpret the term ‘commissioning’ in the sense of the EEG.

Secondly, the court applied the most customer-hostile interpretation of the GTC and determined that commissioning means the actual commissioning of the system and that this actual commissioning is solely within the sphere of the tenant. Thus, the agreement on the performance period violated the GTC provision in § 308 (1) sent. 2 BGB, which led to the invalidity of the provision.

The statutory regulation then applies. According to this, the claim to payment of rent pursuant to § 535 BGB begins with the transfer of use. As the PV system was already installed when the contract was concluded, the landlord in this case already had a claim to payment when the contract was concluded.

Significance for contractual practice

The judgement underlines the importance of precise and comprehensive wording of contractual clauses. When drafting utilisation agreements in the field of renewable energies, it is essential to clearly define important contractual components such as the start of the contract term and the time of payment obligations as well as responsibilities.

A clear regulation should be made regarding the start of the contract. Read our article on this.

With regard to the payment obligation, the first step is to precisely regulate each point in time to which it is linked (e.g. start of construction, commissioning, dismantling). For commissioning in particular, we recommend referring to the definition in the EEG.

The second step is to examine whether the occurrence of these points in time is influenced solely by the GTC user. The judgement again argues in favour of offering a reservation fee so that at least a small usage fee is paid regardless of the dates ‘start of construction’ and ‘commissioning’, which can only be influenced by the project developer.

An alternative to this would be to work with events, concrete data or even actions that are independent of both parties and lie within the sphere of the consumer.

Finally, the objection of unilateral determination of the dates can be eliminated by the contracting parties recording the date in an addendum.

If you have any questions on the above topics, please do not hesitate to contact us - we look forward to hearing from you.