§ 1-9. Can you contract out of the Financial Contracts Act?

The Financial Contracts Act (Finansavtaleloven)·LOV-2020-12-18-146

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In brief

The Act cannot be set aside by agreement to the detriment of consumers (forbrukere).
For other customers (kunder), an agreement, established practice or custom can take precedence over the Act.
For other customers too, there is a list of rules that cannot be set aside at their expense.
Chapter 1, § 3-1 first subsection, § 3-55 and chapter 7 cannot be departed from by agreement at all.

The text of the law (unofficial translation)

§ 1-9. Mandatory nature

(1) The Act cannot be departed from by agreement to the detriment of a consumer.

(2) When the customer is not a consumer, the Act yields to agreement, established practice between the parties or other custom that is considered binding between the parties. With the exception of rules that apply only to consumers, the following provisions cannot be departed from to the detriment of the customer: chapter 1, § 2-4 first subsection second sentence, § 2-5, § 3-4, § 3-9, § 3-12, § 3-48, § 3-53 first subsection, §§ 3-56 to 3-58, § 4-1, § 4-2, § 4-5, § 4-6, § 4-9, § 4-12, § 4-13 second subsection second and third sentences and third subsection, § 4-15 first subsection, § 4-16, § 4-17, § 4-18, § 4-24 with the exception of the 13-month time limit, § 4-26, § 4-28 second subsection with the exception of the 13-month time limit, § 4-29, § 4-42 second subsection, § 4-45 first and second subsections and third subsection first sentence, § 4-50 fourth subsection letter c, § 4-52, § 5-2 first subsection first sentence and § 5-7.

(3) The rules in chapter 1, § 3-1 first subsection, unless otherwise provided by special rules of law, § 3-55 and chapter 7 cannot be departed from by agreement.

Source: Lovdata — Finansavtaleloven (the Financial Contracts Act) § 1-9

What does this mean?

This section determines how far the parties can contract out of the Act. The main rule for consumers is strict: an agreement cannot leave the consumer in a worse position than the Act does, see the first subsection. The rules thus work as a floor (minimum protection) that the agreement cannot go below.

Customers other than consumers have less protection. For them, an agreement, established practice between the parties or binding custom (long-standing and general practice) can take precedence over the Act. The second subsection nevertheless contains a long list of provisions that cannot be set aside at the customer's expense, even if the customer is not a consumer. Rules that apply only to consumers are excluded from the list. The provisions on the list include § 2-5 on the allocation of fees and § 3-9 on how the agreement is entered into. The list contains many more, and some of them have their own exceptions, for example for a particular time limit.

For a narrower group of rules there is no freedom of contract at all, regardless of who the customer is: all the provisions in chapter 1, as well as § 3-1 first subsection (unless special rules of law indicate otherwise), § 3-55 and all of chapter 7. § 3-1 first subsection is about the service provider (tjenesteyter) having to act honestly and professionally and identify its own conflicts of interest, and § 3-55 gives the Norwegian Consumer Authority (Forbrukertilsynet) and the Market Council (Markedsrådet) the supervisory role.

Example: a service provider and a business agree that one of the Act's rules is to apply differently. The agreement is valid, unless the rule is on the list in the second subsection. If it is on the list, the agreement cannot put the business in a worse position. Rules that apply only to consumers do not benefit the business at all. If the customer is a consumer, a similar agreement cannot weaken the consumer's position. Who counts as a consumer is determined under § 1-4, and the rules on choice of law are found in § 1-10.

Related sections

All sections of the Financial Contracts Act →

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