1. Overall
In part 1 of our two articles on the characteristics of the contract subject, we dealt with the provisions of the standard on agreed requirements.
In this article (part 2) we discuss the other provisions.
For the record, it is mentioned that when we write that Chapter 6 deals with the characteristics of the subject of the contract, it is our designation since the chapter headings in NS 8411 and NS 8412 are different, respectively.
The heading in NS 8411 kpt VI is “Characteristics of construction products” while the heading in NS 8412 kpt VI is “The characteristics of the products and the duties of the seller”.
For the record, it is mentioned that what concerns the “duties of the seller” in NS 8412 are provisions which function primarily in those parts of NS 8412 relating to manufacture and assembly. These are discussed in the article collection for the separate provisions of NS 8412.
As in Part 1, we deal only with the provisions common to NS 8411 and NS 8412.
2. Rule mirror
3. Guarantees
This provision applies when the seller has given guarantees regarding the construction product or product “properties or durability”.
It is not only guarantees given by the seller personally that are covered by the provision. The seller may also have referred to warranties provided by “producer or others”.
In the same way that the seller can become liable for promises made in the marketing by others, cf the article on agreed claims, the seller is identified with guarantees made by others. The difference is that the seller must have “shown to or attached to a warranty given by the manufacturer or others”.
In other words, for guarantees, it is a condition that the seller himself has made this visible to the buyer.
In other words, it is not enough that the buyer has seen an advertising feature on the web where the manufacturer guarantees for an item “properties or durability”.
If the seller has provided a guarantee or “shown to or attached to a warranty given by the manufacturer or others” the buyer can relate to the seller if the item or product does not live up to the warranty.
When a guarantee is given, “breach of warranty trigger objective liability for all foreseeable loss purchaser incurred”, see second paragraph of the provisions.
That said - that something is sold with a guarantee often raises questions about what is meant.
The starting point must be taken in the wording of the warranty. It is not enough to sell construction products or products “with a guarantee”. There needs to be more information about what is guaranteed in terms of the construction product or product “properties or durability”.
To give some more guidance on what a guarantee actually entails — beyond what is implied by the provisions of NS 8411 and NS 8412 — it is natural to start from the legislation.
The Purchase Act does not contain any express provision regarding warranties, but in section 21 of the Act “Time of shortage” the second paragraph refers to situations where the seller has given a guarantee. The legal provision itself can be read here.
It follows from Section 21, second paragraph of the Purchase Act, that the seller “also accounts for shortages that occur later (thats after takeover) if it is due to a breach of contract on his part, the same applies if the seller, by guarantee (...), has assumed responsibility for the fact that the thing will have specified characteristics or be suitable for ordinary use or a particular mode of use for a period of time after delivery”.
Section 18a of the Consumer Purchase Act contains a separate provision on warranties, and you can read it here.
Although the law does not apply to purchases between professionals, it is relevant to use the provision as a source of law when clarifying in more detail what is meant by “guarantee” in matters of purchase.
In the Consumer Purchase Act, Section 18a, first paragraph is “guarantee” explained that the seller has undertaken “themselves to answer for the fault of the thing which is not a deficiency under the rules of the law”.
It will be meaningless if the seller can use the term “warranty” as something tantamount to that will comply with their ordinary, statutory duties. This must also apply in agreements between two professional parties.
Furthermore, it follows from Section 18a, second paragraph of the Consumer Purchase Act that if the seller has “committed to answer, within a certain period of time, in whole or in part for the usefulness or other characteristics of the thing (...) there is a defect if the thing does not correspond to the seller's obligation”.
When reading the provisions of the Purchase Act and the Consumer Purchase Act, respectively, in the context of NS 8411 paragraph 20.2 and NS 8412 paragraph 18.2, it appears reasonably clear that a guarantee is intended to grant the buyer rights that go beyond the rights which would in any case result from NS 8411 and NS 8412.
At least as long as the seller has given a guarantee about the construction product or product “properties or durability”.
However, as mentioned earlier, the wording of the guarantee must be based on the wording of the guarantee, which is supplemented by the provisions of NS 8411 and NS 8412.
We have already pointed out the second paragraph of the provisions, where it is stated that the seller's liability is limited only by what was “reasonable”. This is in contrast to the situation where no guarantee is provided where liability is limited to the amount of the purchase price, cf. NS 8411 paragraph 28.3.2 and NS 8412 paragraph 30.3.2.
When a guarantee is given, the liability is also objective so that for the buyer it is sufficient to ascertain “breach of warranty” to make liability applicable.
We will also refer to the third paragraph of the provisions, which states that “the seller has the burden of proof that deviations from the warranty (...) are due to circumstances not covered by the warranty”.
This rule involves a significant simplification for a buyer who wishes to make defect liability applicable. Without warranty, the Buyer must assume that the defect is not the result of improper use, poor maintenance or other circumstances of which the Buyer has the risk.
However, when a guarantee is given, it is the seller who must make it probable that the defect is due to circumstances of which the buyer has the risk.
The last paragraph of the provisions states that the seller may make certain requirements as to how the buyer will store, use, operate or maintain the construction product or product in order for the warranty to apply.
Equally, it will be the seller who will have to make the likelihood that such amber has not been complied with by the buyer. In addition, it is the seller who must make it probable that the buyer's failure to comply is the reason why the product or product is not (no longer) in conformity with what was guaranteed.
4th. General requirements
The first paragraph of NS 8411 paragraph 20.3 and NS 8411 paragraph 18.3 states that, unless otherwise provided by the agreement, the subject matter of the contract shall “have the usual good quality and durability” and “fit for the purposes of equivalent” contract objects “commonly used for”.
If the subject of the contract is electrical items intended for use in ordinary rooms with normal temperature, humidity, etc., and the buyer uses these inside a swimming pool, it will most likely not be possible to hold the seller responsible when (if) the electrical items cease to function.
Something else, of course, could result if the agreement says otherwise about the use of the equipment, but that will be unlikely.
We also mention the second paragraph of the provisions, where it is stated that the seller must specifically inform the buyer if there are circumstances that dictate that the subject matter of the contract must “stored, used, operated or maintained” in a certain way, and that “can't be expected to” The buyer knows this.
Our recommendation is that the seller does not expect anything from the buyer, but encloses such information material to avoid ambiguities.
By the way, we refer to the provisions.
5. Specific Purposes of Buyers
In some cases, the buyer has a purpose in acquiring a construction product or product that is unusual or is in any case outside the core scope of the construction product or product.
In such situations, the starting point is that the seller does not become liable if the buyer's purpose for the acquisition is not achieved.
We refer in this regard to the first sentence of NS 8411 paragraph 20.4 and NS 8412 paragraph 18.4 where it is stated that the seller “don't have the risk of” for the specific purpose of the buyer.
The rest of the two provisions concern situations in which the seller nevertheless has the risk that the buyer's specific purpose is fulfilled.
This will be the case if it is stated in the agreement, or the seller must be deemed to have assumed the risk, for example, by recommending the contract subject in question knowing the particular needs/purposes of the buyer.
If the situation is such that the seller has assumed the risk under the second paragraph, it follows from the third paragraph that the buyer has a special duty of information to the seller. This is to ensure that the seller truly understands what “particular loads” the buyer's current use will inflict on the construction product or product.
6. Requirements in laws and regulations
Construction products and products traded for use in construction or construction projects must of course satisfy the applicable requirements of law or regulations.
A legal source would then be a technical regulation (TEK 17), but this largely contains only functional requirements. In addition, a supervisor has been provided to TEK 17 (VTEK 17) who explains in more detail how the functional requirements can be met. However, VTEK17 is not legally binding as TEK 17 is. If the construction product or product meets the requirements of VTEK 17, the requirements of TEK 17 are deemed to be fulfilled. If, on the other hand, one chooses a solution other than that provided by VTEK17, one must be able to document that the requirements of TEK 17 are nevertheless met, and this is done through a so-called analysis, cf. TEK 17 § 2-2 (2).
However, there are very many requirements that one places on construction products and products that are to be incorporated into a building or facility, and which cannot be returned to a specific requirement in law or regulation.
Many of the standards for what is safe follow, for example, manuals or building detail sheets prepared by SINTEF. In the field of electrophage, there will also be a combination of regulations, manuals and standards, as will the plumbing sector.
We mention this because we believe it is important that the parties have a reasonably high focus on these distinctions and are themselves careful when negotiating contractual terms. After all, it may be an idea to create a separate provision that the standard contracts' provision on requirements in laws and regulations should also apply to such requirements as we have mentioned here.
In NS 8411 paragraph 20.5.1 and NS 8412 paragraph 18.5.1 (first paragraph in both places), it is established that the subject matter of the contract shall primarily satisfy such public law requirements as were in force at the time of the contract.
If changes occur prior to delivery, the buyer has the right to demand that the contract subject be adapted to the new requirements or replaced with contract objects that meet the new requirements of public law. However, it is the buyer who has the risk of such changes, and thus the buyer must also pay the additional costs such adaptation or replacement entails, cf. second paragraph of NS 8411 paragraph 20.5.2 and NS 8412 paragraph 18.5.2 respectively
Exceptions to this apply if the seller “had to understand that such changes would occur”, cf the first paragraph of the two aforementioned provisions. In this case, the seller bears the risk and must pay for the changes necessary for the subject matter of the contract to satisfy the new requirements of public law.
7. Management, Operations and Maintenance (FDV)
In construction and construction projects, strict requirements are imposed on that documentation.
This obligation of documentation applies in particular to construction products and products used for the construction and completion of the project in question.
For this reason, among other things, the contract law standards require that complete FDV documentation must be available and transmitted to the client well before the takeover transaction is to take place. Often the deadline for submitting FDV documentation is daymulched.
The seller's obligation to send the buyer FDV documentation is therefore essential for the contractor to be able to comply with its obligations up the contract chain.
Accordingly, the main rule is that FDV documentation should be submitted to buyer “at the latest on delivery of the construction goods”, cf NS 8411 paragraph 21, first paragraph.
For the purchase of products under NS 8412, the rule in paragraph 22 is different, but this one also assumes that the FDV documents for the product are delivered to the buyer well in advance before it becomes necessary for him to hand over his work up the contract chain.
It is stated in NS 8412 paragraph 22 that the FDV documentation must be handed over “in reasonable time prior to delivery” if the agreement does not include assembly. If the seller is to assemble the FDV documentation must be provided “in reasonable time prior to takeover” of the assembled product.
Incidentally, the two provisions on FDV in NS 8411 and NS 8412 respectively contain detailed rules on requirements for FDV documentation with reference to TEK 17 and NS 3456:2022 “Documentation for management, operation, maintenance and development for buildings and associated outdoor areas (FDVU documentation)”.
