1. Preamble
This article deals with the complaint rules of both standards, specifying that in the NS 8412 cases, complaint rules apply only when the agreement does not include assembly.
For this reason, it is seen in the rule mirror that there is a row where it says “Agreement not involving assembly” and in which only a reference is made to a point (25) of NS 8412. We draw your attention to the fact that paragraph 25 is — in isolation — devoid of content. The content can be found in subparagraphs 25.2.1 below.
The complaint rules when assembling are dealt with in the article collection with special provisions for NS 8412.
2. Rule mirror
3. About Complaints
3.1 The rules must be followed otherwise the defect claim will be lost
The first paragraph of NS 8411 paragraph 23.1 and NS 8412 paragraph 25.1 establishes that the buyer must advertise to the seller in order not to lose the right to invoke a defect and, in that regard, advertise in accordance with “the rules in the following points”.
In the second paragraph of the same provisions, users are informed of the limitation rules and that these are different from complaints rules. In addition to reading the actual wording, one can also read our article on “Obsolescence and Complaints” as one finds here.
3.2 Relative and absolute deadline for complaints
The standard contracts do not use the terms, but we normally tend to distinguish between the relative and the absolute claim deadline.
The absolute deadline for complaints can be found in NS 8411 paragraph 23.4 and NS 8412 paragraph 25.3.3, and it is now fixed to five years. In the Purchase Act, the absolute deadline for complaints is two years, cf. Section 32 (2) of the Purchase Act.
Now that the decision has been made to extend the absolute complaint period to five years, it is more in line with the contract law standards which also have an absolute complaint deadline of five years.
Nevertheless, there is a difference since the claim deadline begins to run when the contract object has been handed over to the buyer. This will normally be at a significantly earlier date than the handover of the finished building or plant to the builder, which is the start of the deadline for the absolute complaint deadline in the construction contract.
The relative time limit for complaint must be used within the limits of the absolute complaint deadline.
In addition, it is an obligatory condition that the relative time limit for complaints is used within a relatively short period of time.
In the construction contracts, this deadline is stated as “within a reasonable time” in the case of deficiencies discovered after the takeover. Deficiencies that the builder discovers or should have discovered on the actual takeover must be advertised there and then so as not to be lost.
“Within a reasonable time” in construction contracts is perceived to amount to one to two weeks, but not more.
In the standard contracts NS 8411 and NS 8412, the relative time limit for complaint is primarily related to the time when the buyer receives the contract object after transport, and then takes the contract object into use. This is called transport control and use control, respectively, and it is the provisions of NS 8411 paragraph 23.2 and NS 8412 paragraph 25.2.1 that regulate this.
4th. More about transport and use control
The provisions describe quite well what the control entails, and we therefore refer to what it says.
For these two types of control, it follows from the third paragraph of the provisions that the buyer must advertise “within 14 days” after one either discovered, or should have discovered, the defect.
The fact that the deadline has been set at 14 days we believe is reasonably favourable and in favour of the buyer.
However, a lot can happen within 14 days — both when the contract objects are located or stored waiting for them to be put into use on a construction or construction site. Consequently, it is important — we believe — that the buyer advertises immediately upon receipt if the contract item, packaging or otherwise has visible marks or other signs of damage. One should not wait until a fortnight has passed because then one can easily have a discussion that such damage has occurred after the buyer took over the risk.
Furthermore, the subject matter of the contract will be put into use and presumably incorporated into the building or facilities immediately after a use check has been carried out. If one waits fourteen days to advertise and the item has been used with such defects, one may also be faced with objections from the seller.
We do not mean by this to override the notification period of 14 days, but we point out that the longer the time elapses after the discovery of a relationship, the risk of factual and relevant objections from the seller — even if the relative deadline for complaints is complied with.
Buyer should also note the last paragraph of NS 8411 paragraph 23.2 and NS 8412 paragraph 25.23.1.
From these provisions it follows that the buyer cannot use the defective contract if it is advertised to the seller. The seller must be given the opportunity to correct (possibly re-deliver in NS 8411 cases) and that opportunity may be lost if the contract object is incorporated into the building or plant in question.
In our view, it is a bit strange that one associates this prohibition on the use of the object with the condition “given message” to the seller about shortages.
One cannot ignore that a buyer discovers the defect, incorporates and then notifies the seller. So what?
We would probably think that such an action is disloyal to the seller, but then it must be made probable. It is not so easy to believe that someone has behaved disloyally, and in any case it becomes very tense between the parties if such arguments are made. Accordingly, we think it would have been better to impose a duty of care on the buyer and write that the buyer cannot use a contract subject if he understood or ought to understand that there was a defect that he intended to make known to the seller.
Finally, it is mentioned that the provisions give the buyer a right to use the subject of the contract if it is done to comply with the buyer's loss limitation obligation.
5. Subsequent complaints
For defects that are discovered later, the requirement is that the buyer advertises “within a reasonable time', see NS 8411 paragraph 23.3 and NS 8412 paragraph 25.3.3. What is “within a reasonable time” must be considered concretely, but we refer to practice in contract law standards where one to two weeks is considered to be the norm.
Since there is a 14-day deadline for advertising after transport and use control, it is difficult to imagine that “within a reasonable time” is shorter than two weeks. However, one cannot wait for many weeks or months to file a complaint. After all, in such contracts, there are two professional parties, and the seller may conceivably need to forward a complaint to his contract assistants.
Either way, this will have to be a concrete assessment.
6. Deadline for complaint lapses in case of gross negligence on the part of the seller
Please note that the complaint deadline does not apply if there is gross negligence or intent on the part of the seller, cf. NS 8411 paragraph 23.5 and NS 8412 paragraph 25.2.4.
We have written a little about what lies in the term “gross negligence” in our article on delay and it can be read here.
7. The complaint must be written, specific and sent to the correct address
As regards the content of the complaint, it follows from NS 8411 paragraph 23.6 and NS 8412 paragraph 25.4 that it must be stated “clear” of the message that it is advertised, that one invokes that something is a deficiency and what the deficiency consists of.
It is also important to note that the provisions use the term “message”.
That means one cannot settle for an oral inquiry.
We refer in this regard to point 4.2 of NS 8411 and NS 4812, respectively, which we have written about in an article that can be found here.
In short, you must send an email with or without attachments stating that you are advertising, the reason for the defect, etc., and that email should be sent to the seller's representative or other, stated email address.
