1. Overall
The rules on which requirements apply to construction products and products are found in Chapter VI of NS 8411 and NS 8412, respectively.
The chapter headings of the two standards are respectively “Properties of construction products” (NS 8411) and “Properties of products and duties of sellers” (NS 8412). We have used “the subject of the contract” as a common term.
The chapters contain an unequal number of provisions in that NS 8412 contains far more than NS 8411.
This has its explanation in two conditions.
Firstly, the products regulated by NS 8412 shall be manufactured according to the buyer's specifications, and secondly, NS 8412 also regulates procurements where assembly is included as part of the contract.
In this section we deal with the provisions common to both standards. The provisions which are set out only in NS 8412 (manufacturing and assembly) are dealt with in the article collection for the separate provisions of NS 8412. The relevant article regarding “Characteristics of the Products and Duties of the Seller” can be found here.
In this article, we consider the provision of NS 8411 paragraph 20.1 and NS 8412 paragraph 18.1 on agreed claims.
The other provisions common to the two standards are dealt with in the second article here in the thematic collection for both standard contracts.
2. Rule mirror
Below we have taken a rule mirror showing which provisions of each of the standards belong to Chapter VI. The provisions highlighted in red under NS 8412 (paragraphs 19 — 21 and 23) are dealt with separately in the article collection for NS 8412.
3. Agreed requirements
3.1 Overall
Agreed claims are dealt with in NS 8411 paragraph 20.1 and NS 8412 paragraph 18.1 respectively.
Each of the provisions consists of four paragraphs (paragraphs) and the last three are identical to each other.
The first paragraph (paragraph) is different in its wording, and it is related to the scope of application of the standards. As is known, NS 8411 is used for the purchase of generic construction products, whereas NS 8412 is used when the product is to be manufactured according to the specific specifications of the purchaser.
Common to the standards, however, is that the seller must deliver according to what has been agreed.
3.2 First paragraph of the provisions
In NS 8411 paragraph 20.1, first paragraph, the seller is obliged to supply construction products that meet “the requirements for nature, quantity, quality, other characteristics and packaging” as follows from the agreement.
In NS 8412 paragraph 18.1, first paragraph, the seller is obliged to deliver a finished product that satisfies “the claims arising from” a detailed description when the Buyer has made one, or which meets the Buyer's “function description”.
Although we come back to this in more depth in the article collection where we deal only with the special provisions of NS 8412, it may be useful to explain a little more about the difference between detail and function description.
When the buyer creates a function description, one specifies the overall requirements (functions) that the general contractor must fulfill. How the functional requirements are to be met is left to the general contractor, who is given the freedom to design a solution himself in detail.
If the builder designs in detail what the contractor is going to build, there will normally be nothing left for the contractor to design. The contractor performs what the builder has designed and only that.
An essential difference between these two forms of construction (turnkey and execution contract) is that there is a defect or a default if functions are not fulfilled in a turnkey contract, whereas there is no defect or default if the builder's detailed design is fulfilled. The latter despite the fact that the overall functional requirements of the builder are not met.
This distinction is also relevant to take into account in contractual relations governed by NS 8412.
3.3 Other Sections of the Provisions
The second paragraph (section) of the provisions deals with information provided in connection with the seller's marketing of the construction products or products and about their properties or uses, “included as part of the purchase agreement, cf. section 18, first paragraph of the Purchase Act”
In the third paragraph it is clarified that this applies not only to information provided by the seller (personally), but also by others who have done so “on behalf of the seller or former sales team”.
It may be employees of the seller or it may be the manufacturer who has prepared advertising material that the seller uses.
The third paragraph also states that incorrect information about the construction products or the product cannot be relied upon by the purchaser if “the seller neither knew nor should have known that the information had been provided, cf. Section 18 second paragraph of the Purchase Act”.
We do not believe that this clarification is of such importance in practice, but in any case it clarifies that the seller has a duty of care and should have control over who speaks about what. This is evident from the words “seller (...) should have known”.
Note also the last paragraph of the provisions where it is specified that if the seller has corrected incorrect information “in a clear way” which obliges not sells.
The point of intersection of when the erroneous information must be deemed given and the seller is expected to have corrected it must be at the latest at the conclusion of the contract.
Incorrect information that the Buyer has become aware of after the conclusion of the Agreement will not have been suitable to motivate the Buyer to enter into the Agreement on the terms in question. Similarly, it will not help the seller to correct erroneous information that he should have corrected no later than at the time of the agreement after the conclusion of the agreement.
