Is a contract for the sale of a photovoltaic system voidable??


A contract for the sale of photovoltaic energy can be declared void as the production is lower than that reported

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The production and profitability of photovoltaic energy contracts are essential elements of the contract. Failure to comply allows the purchasing party to exercise the action for nullification of the contract due to an error in the consent.
In this post we review one of these cases resolved by the Civil Chamber of the Supreme Court in judgment of 6 July 2020, (Resolución 402/2020).

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

Between 2007 and 2008, photovoltaic power modules were purchased by various buyers from PSN, S.L.

From the beginning of the installation, these modules did not meet the estimated production targets, being very inferior. PSN, S.L., offered to place various items, calling it a "technical improvement plan", finalizing its installation in autumn 2010. This plan made production improve, but it still did not reach the forecasts or estimates of the contractual offer.

Lawsuit was filed by the buyer, requesting that the absolute nullity of the sales contracts be declared, or the relative nullity, due to the existence of a defective error in the consent, having received wrong pre-contractual information.

The defendant objected, claiming expiration of the action, since the contracts were understood to have been consummated after the delivery of the modules and the payment of the agreed price. The four-year expiration period had already expired when the lawsuits were filed., in december 2013 and January 2014. He alleged that there had been no type of contractual breach.

Primera Instancia

The Court of First Instance No. 7 of Pamplona sentenced the 19 January 2015, estimating the lawsuit filed by buyers against PSN, S.L.

Declared the nullity of the contracts for the sale of photovoltaic solar energy modules. Condemned PSN, S.L., to return to the plaintiff the amounts paid for the acquisition of said modules.

For the Court, the contracts were consummated after the completion of the "technical improvement plan", at the end of 2010, namely, after carrying out the agreed modifications. Therefore, the actions exercised between December 2013 and January 2014 they had not expired, Well, the deadline for 4 years foreseen for the annulment action.

Provincial Court

PARSONA CORPORATION, S.L. (onwards, PC, S.L.) appeared as a winner after the liquidation of PSN, S.L., and filed an appeal.

The 3rd Section of the Provincial Court of Navarra issued a ruling on 19 September 2017, estimating the resource.

Declared expired the action for annulment of the purchase and sale contracts and dismissed the action for contractual resolution and compensation for damages.

The Section understood that we were dealing with sales contracts where the essential object was the delivery of the photovoltaic installation and the payment of the price, not production or return on investment. For Section, the consummation of the contracts took place at that time, starting to count the deadline 4 years to file the annulment action. This action would already be expired when they filed the lawsuits.

Nor did it consider that there had been contractual breach, since productivity was not mandatory content of contracts.

Supreme Court

The buyers of the photovoltaic solar energy modules filed an appeal, based on three reasons:

  • first plea: infringement art. 1301 CCivil and jurisprudential doctrine regarding the declaration of expiration of the action for annulment of contracts.
  • second reason: infringement art. 1266.1º, in relation to the art. 1265 CCivil, Regarding the action for the annulment of contracts due to an error in the consent given.
  • third plea: subsidiary to the previous. Violation of art. 1124 CCivil and jurisprudential doctrine regarding the resolution action of contracts.

The Chamber estimated the first two reasons, so the third party did not enter.

The Chamber brought up the STS 366/2013, a very similar case, que indicaba:

“1. Therefore, production / profitability are not only not unrelated to the contract, rather, the pre-contractual information was directed mainly and directly in this sense, as the sentence appealed in cassation highlights. 2. The pre-contractual information generated an error in the contracting parties. 3. How will it be understood, production and profitability are inseparably linked to the purchase or better, to the participation in a photovoltaic power plant as object of the contract”.

Ultimately, para la Sala, the contract of sale was not consummated after the delivery of the modules and the payment of the agreed price, but when the agreed modifications were finalized to increase the productivity of photovoltaic installations in autumn 2010, therefore, the period of four years had not elapsed, the action not having been extinguished (art. 1301 CCivil).

Confirmed the sentence handed down in the first instance, because he considered that “It was an essential error of the contract that they had not been duly informed of the profitability or the real production of the power plant they acquired, these elements that formed an essential part of what was agreed. (art. 1266  CCivil).”


The profitability and actual production of the power plant is an essential part of the purchase agreement for a photovoltaic installation. If that information is not correct, You can request the nullity of the contract due to an error in the consent.

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