1. Overall
In Chapter VII of the Standard Contracts “Missing” a series of provisions identical to NS 8411 and NS 8412 have been adopted, and the articles are here.
This article deals with some special provisions of NS 8412 concerning complaints when the products are to be assembled and therefore a takeover transaction is carried out. We have written a separate article on the conduct of such a business that can be read here.
2. Overview of the rules
3. Complaints in connection with takeover
When a takeover transaction is carried out after assembly, it follows from NS 8412 clause 25.3.1, second paragraph, that the buyer shall control the delivery.
If the Buyer discovers or should have discovered defects in the Product at the Takeover Business, he must make a complaint to the Buyer no later than one week after the closing of the business.
Claiming he later than a week loses buys his right to make the shortfall applicable.
In construction contracts, the deadline for complaints is stricter. There, you must advertise while the actual takeover business is in progress, and the deficiencies must be recorded in the protocol.
4th. Subsequent complaints
If the buyer discovers or should have discovered new defects or defects after the takeover, he must make a complaint “within a reasonable time” to the seller, cf. NS 8412 paragraph 25.3.2.
If the deadline is not met, the right to enforce the defect is lost.
One may wonder what “reasonable time” means.
In our view, it is acceptable to start from the complaint deadline of one week for deficiencies detected on the takeover business itself. The “reasonable time” deadline is presumably longer than one week, but we would not recommend waiting more than two weeks.
It must be borne in mind that these are two professional parties, and the norm in contract law is that notification deadlines are short and strict. This is related, among other things, to the fact that the seller is advertising to, may well be expected to have his own contract assistants to whom he must forward the complaint. Often it will also be appropriate to secure evidence, obtain expert opinions and at the same time it is the case that the object in which the product is incorporated is in some form of use. All this suggests that complaints are made without undue delay in time.
In conclusion, it is clarified that complaints should (and should) be made in the form of written messages sent electronically and to the representative of the counterparty or other such as described in NS 8412 paragraph 4.2.
5. Complaint Period
NS 8412 paragraph 25.3.3 states that the absolute deadline for complaint is five years.
This is an innovation when it comes to the purchase of building materials and we have written about this in the joint collection, and where the article can be read here.
The only reason to include a separate provision on the complaint period in connection with assembly is to clarify that the complaint period begins to run “after the takeover”.
Incidentally, this is also stated in NS 8412, paragraph 13.5, first paragraph, letter e.
6. Exceptions to the Complaint Rules
We have already written an article stating that the complaint rules do not apply if the defect is the result of gross negligence or contrary to the honesty and good faith of the seller or someone for whom he is responsible. We refer in this regard to the same article to which we have provided a link in paragraph 5.
