1. Overall
The rules of assembly can be found in Chapter IV “Delivery” Paragraph 13.
NS 8412 paragraph 13 is substantially consistent with the rules on takeover business as regulated in the Contract Law Standards NS 8405 and NS 8407.
It follows from NS 8412 paragraph 13.1 that the object of takeover under these provisions is “products”. “Products” is define in point 2.3 as “the goods and technical product that the seller under the agreement shall manufacture and, if necessary, assemble for the buyer”.
NS 8411 applies to the purchase of generic construction products (“goods”), but itself has no corresponding provisions if the seller is to assemble the construction products as part of the parties' agreement. We have therefore recommended that, if agreed, we recommend that the parties refer to the provisions on assembly in NS 8412 and make these part of the contract.
2. Overview of the rules
3. About “takeover”
When the contract object is to be assembled by the seller, the takeover takes place by the parties conducting a takeover transaction. Unless the parties have agreed on a partial handover, the takeover takes place “collected for all products”.
We understand this rule to mean the products (and/ or construction products) to be assembled. Everything else is delivered according to the ordinary rules of delivery without assembly.
4th. Testing on internal regulation
Where the contract includes technical installations or other equipment to be tested and adjusted to ensure that the subject matter of the contract works as agreed, this shall be done “in accordance with common practice and generally applied standards”, unless otherwise specifically agreed.
What is “common practice and generally applied standards” may vary, but we highlight two standards and a supervisor that are particularly relevant.
This applies to NS 3935:2019 “ITB, engineering, execution and commissioning” and NS 6450:2015 “Commissioning and trial operation” , as well as Tutor BA (2015) “Systematic completion” published by the Construction Industry.
From the preface the following is found:
“The construction industry has in recent years experienced a lower productivity development than other industries, and many construction projects are characterized by the fact that the technical systems/designed functions do not work properly when the building is finished”.
What is described in the quote was the situation in 2015, but whether the situation has significantly improved today is unknown. Either way, it is important that one tests etc in advance of the takeover business.
We also refer to the article “Preparing for takeover” located under the theme collection “Standard contracts at the main level” Chapter VIII “Completion of the construction case”, which can be read here.
It follows from NS 8412 paragraph 13.3.1 letter a that test documentation must be submitted to the buyer together with the notice of takeover business. In the standards of contract law, the rule is that this documentation is submitted three weeks before the call for takeover business.
There is nothing in the way for the parties to an NS 8412 contract to regulate this deadline separately. In this regard, it may also make sense to agree concretely how the test and regulation will be carried out, and by what. This is in order to create a back to back situation with the requirements that the buyer has to fulfill in relation to his contractual partner in the contract relationship.
5. The Takeover Business
The rules on takeover business are divided into five parts, which are
- Summons and documentation (13.3.1)
- Execution of the business (13.3.2)
- Takeover Protocol (13.3.3)
- Right to refuse takeover (13.4)
- Impact of takeover (13.5)
For those who know the system in the contracts of contract law such as NS 8405, NS 8406 or NS 8407, it can be seen that the rules are essentially identical.
We therefore see no reason to write about this in detail here, but instead refer to the article “Takeover” in the theme collection “Standard contracts at the main level” Chapter VIII “Completion of the construction case”, which can be read here.
6. The right to refuse takeover
The product must comply with the requirements that the buyer may make in accordance with NS 8412 paragraph 18, which we have written about in the joint collection Chapter VI “Properties of construction products”, which exists here.
If the product is found to be defective at the time of acquisition, the buyer may, as a starting point, refuse to take over, cf. NS 8412, paragraph 13.4, first paragraph.
However, this right is not unlimited. It follows from the second paragraph that the buyer may not oppose the takeover if the discrepancies (defects)) “can be corrected by adjustments and supplements that have little practical bearing on the use of the products”.
The last paragraph of paragraph 13.4, last paragraph contains a reminder of the buyer's sanction options that apply even when assembly has been agreed, cf. the rule on rectification, price reduction and raising respectively. We have dealt with these rules in an article in the joint collection that can be read here.
7. Effects of Takeover
In contracts governed by contract law, the takeover itself has significant legal effects for the parties, as does the takeover in NS 8412 contracts.
The rules on this can be found in NS 8412, paragraph 13.5, where the effects are listed in letters a — e.
In short, any delays cease from this point on, the risk of the product passes from seller to buyer, seller's insurance obligation ceases and the deadline for seller's liability and complaint period begins to run.
If the takeover transaction lasts for more than one day and it ends with the acquisition of the product, the effects shall be deemed to have occurred from the first day of the takeover business.
By the way, we refer to the provision for supplementary reading, and so can our article on takeover in contract contracts, which we have referred to above.
