1. Overall
NS 8411 and NS 8412 contain provisions on how agreements can be concluded. The standards describe four approaches, and here the first is dealt with (5).
The other three agreement mechanisms (6,7 and 8) are dealt with in the article “Other forms of contracting”. We have previously written a separate collection of articles on “Contract Law” where much of the same is treated on a more general basis. This collection exists here.
2. Overview - rule mirror
We have also written a separate article on the same topic in the article collection “Contract Law”. The article in question exists here.
3. More about”Basis for seller's offer”
3.1 Overall
The contents of NS 8411 paragraph 5.1 and NS 8412 paragraph 5.1 are different.
The explanation is that the contractual object of NS 8411 contracts is “construction products” which are generic and which are neither, nor as a starting point, shall be manufactured specifically to suit the particular needs of the purchaser.
This is in contrast to the “products” in NS 8412 contracts where the key to manufacturing is the specific requirements and needs of the buyer.
Accordingly, the basis of the seller's offer must be formulated in two different ways.
Paragraph 5.1 of the two standards is therefore treated separately.
3.2 NS 8411 paragraph 5.1
NS 8411 relates to the purchase of generic construction products.
The starting point must therefore be that the buyer has knowledge of what kind of goods he needs and what they will be used for.
Despite this, it is clear from the first paragraph of NS 8411 paragraph 5.1 that before the “seller” issues an offer “shall it as precisely as possible clarify what kind of building materials the buyer wants to acquire”, cf. NS 8411 paragraph 5.1, first paragraph.
The formulations therefore suggest that the seller - despite the buyer being a professional - is expected to take an active role. The seller is expected to contribute their knowledge of building materials and what they are suitable for - to help the buyer procure the right building materials for their purpose.
A simple example concerns impregnated wood. All lumber dealers or construction warehouses have impregnated wood in various dimensions. For most people it will hold with CU impregnation AB intended for above-ground use such as cladding, decking, etc. However, if the materials are to be in contact with soil or water, impregnated class A should be used.
It is not without reason given that the buyer knows this difference, while the seller has such knowledge.
Consequently, it is incumbent on the seller - to a certain extent - to control what the buyer is going to use the materials for. In the given example, this will probably apply primarily in situations where pressure-impregnated materials in solid dimensions are to be purchased for building structures, and not decking. When buying construction timber, it is more convenient to ask whether the wood comes into contact with soil or water than when buying only decking.
By the way, the seller's duty under clause 5.1 also has a side to the duty of loyalty, which we wrote about in the article “General requirements for the parties” in Chapter I.
If the buyer has prepared a separate offer basis, it follows from point 5.1, second paragraph of NS 8411, that the offer basis must be designed'in a clear and clear manner.”.
If there are any ambiguities in this, the seller will have an invitation to clarify, but the risk of ambiguity will usually go beyond the person who had an invitation to formulate himself more clearly, namely the buyer.
The requirement for clarity applies not only to the type of building material and quantity. It should also be clearly stated “if specific requirements are imposed on the construction products”.
It is far from uncommon for the seller — after receiving such an offer basis — to have follow-up questions to the buyer in order to obtain clarity on what the buyer should use the goods for and whether there are special circumstances that need to be taken into account.
To the extent that the parties have a dialogue between themselves as to what the buyer will be best served with, it follows from the third paragraph of the provision that agreement on amendments and clarifications is settled in writing so that there is no doubt as to what the buyer wishes to be offered.
3.3 NS 8412 paragraph 5.1
In NS 8412, the issue is different.
In such cases, it will most often be the buyer who has the best conditions to specify and define what is desired from the product to be manufactured.
One could - at least some way along - say the roles have been reversed. Now it is the buyer who knows best what is needed to satisfy the particular needs of the buyer.
Accordingly, the buyer is expected to have prepared a detailed description of what the seller is to manufacture, or a more general description with the functional requirements that the product must meet when it is fully manufactured.
In this case, the seller's task is to assess whether one is qualified and able to produce the desired product, including undertaking the detailed design if only functional requirements are specified.
The provision in NS 8412 paragraph 5.1 uses the two alternative forms of design (function description versus detail description) in the same way that the contract law distinguishes between execution contracts (where the builder designs in detail) and turnkey contracts (where the contractor designs in detail on the basis of the builder's functional description).
We have written about these differences in several articles.
The execution center prices are regulated by NS 8405 and NS 8406, while the turnkey contract price is regulated by NS 8407. We have written a lot about these forms of construction in an article that exists here.
Just as for NS 8411, it is important that the offer basis is “designed in a clear and clear manner”, see NS 8412 paragraph 5.1, second paragraph.
Any changes and clarifications reached by the parties in their discussions must be set out in writing and attached to the offer basis, cf. NS 8412, paragraph 5.1, last paragraph.
4th. Seller's offer
This provision (5.2) is identical in the two standards.
The provision governs, among other things, two key issues.
In paragraph 5.2, the last paragraph, it is stated that the offer is presumed to match the buyer's offer basis unless otherwise stated “clear” of the seller's offer. In that case, it should also be stated “what the discrepancy consists in”.
This rule can be compared to the situation faced in tendering processes where tenderers wish to make reservations. In this case, the reservation must be stated in the offer letter itself and not be hidden away in other documents, see for example NS 8400 paragraph 5.1.1 “Form requirements”, second paragraph.
The purpose is to ensure that one does not unwittingly initiate production of something the buyer does not need. An expression of this idea can also be found in NS 8407 paragraph 2.2, first paragraph of which one can read about here.
If such deviations from the offer basis are made clear, the seller's offer is presumed to correspond to the buyer's offer basis, cf. NS 8411/ NS 8412, paragraph 5.2, last paragraph.
In paragraph 5.2, first paragraph, it is also required that the seller's offer must contain a specific acceptance period for the buyer. If this is omitted, the acceptance period shall be 30 days from “the day on which the offer is dated”. If the offer is not written, but oral, the deadline is counted “from the offer was made”.
When calculating deadlines, questions sometimes arise whether the start of the deadline includes the day the offer is dated, or whether it is from the following day. We indicate in this connection with the wording that the deadline is calculated “as of the day on which the offer is dated”.
When calculating time limits pursuant to Section 148, first paragraph, of the Courts Act, it follows that where time limits are determined by days, the day on which the time limit begins to run shall not be taken into account.
However, our recommendation is that “from” is interpreted as including the deadline from the date on which the offer is dated.
If the offer is dated 10.10.24 and the acceptance period is 10 days, the acceptance period will expire at midnight between 20 and 21.10.24.
Such a rule would also harmonize best with Section 2 of the Contracts Act, second paragraph of which it follows that the acceptance period begins to run “from the blink of an eye” the offer has been sent. This rule originally applied to telegrams, but must now be understood in the same way when sending something electronically. Today, the recipient of an offer is almost immediately aware of the sending of the offer as soon as one presses “send” on a single e-mail.
5. Buyer's Acceptance
The provision (5.3) is identical in the two standards, and the individual paragraphs are a reproduction of the most central provisions of Chapter 1 of the Contracts Act concerning the termination of agreements.
As mentioned earlier, we have written an article about this form of contract making, and it exists here.
Although point 5.3 is quite clear and clear, we will nevertheless attach some comments to the individual sections.
If the buyer's acceptance arrives within the acceptance deadline, and the acceptance does not contain reservations or other deviations from the offer, the agreement is considered concluded.
If the buyer's acceptance arrives too late, the buyer's acceptance is considered to be a new offer to the seller to enter into an agreement on the terms he originally set for his offer.
The seller is then free to reject the offer, accept or set new terms. If the latter is the case, the buyer will be free to accept new terms or even consider himself released from his offer.
If the buyer complies with the deadline, but it turns out that the acceptance contains reservations or new requirements for the seller, then this is in fact a rejection of the seller's offer. Buyer's “refusal” in that case represents a new offer by buyer to purchase on new terms. The seller is free at this time and can choose whether to accept the buyer's new offer, refuse or even put forward new conditions with the consequence that the buyer becomes free of his offer.
Note, however, the last paragraph of the provision.
This opens up the possibility for the parties to enter into negotiations or clarifications without the offer lapsing. If the buyer chooses to initiate such a process, it is important that the buyer makes it clear (and in writing) that he does not reject the seller's offer, but still wishes to discuss specific terms. In that case, the offer remains as it was originally sent until the acceptance period expires. For the buyer, it becomes important to land an agreement with the seller within the expiration of the acceptance period. If he does not, the offer expires unless the parties agree to extend the acceptance period before it expires.
6. Order Confirmation
The provision (5.4) is identical in the two standards.
Much suggests that the provision is the result of an unfortunate practice where the seller has previously forwarded his standard order confirmation to the buyer — after the parties have agreed and entered into an agreement.
The provision in paragraph 5.4 is therefore new criminal work in that it introduces something completely new in relation to what is often practiced.
Now it is clear that the order confirmation “shall vote with whatever the parties have agreed upon through the offer and acceptance”.
In other words, no new terms of agreement shall be introduced by a party after the parties have agreed.
This does not mean that the seller is excluded from using their own standardized order terms.
The point now is that these terms must be transmitted to the buyer at the latest at the same time as the seller's submission of his offer.
In this way, the buyer will be able to decide on the terms and conditions and may comment on them before the end of the acceptance period.
In addition, we would like to highlight some important clarifications stated in paragraph 5.4.
First, it follows from the second paragraph of paragraph 5.4 that if the seller has made a delivery reservation in his offer, the seller must remember to repeat the reservation expressly in his order confirmation.
If the seller forgets to repeat the reservation, this reservation shall be deemed to have lapsed.
Secondly, paragraph 5.4, third paragraph, contains a special rule if the agreement has been concluded orally.
In this case, the buyer must notify “without undue residence” if he will state that the terms of the order confirmation are contrary to the oral agreement.
If the Buyer fails to do so, the order confirmation shall be based as is, unless the Buyer “clearly can reimburse” that the order confirmation is incorrect. The requirement of “clearly can reimburse” is proportionately strong, and it probably takes something more than just a general preponderance of evidence.
