§ 12. Special rules for claims against a guardian and in company relationships

§ 12 deals with situations where the person who is actually supposed to look after the claim may be the same person the claim is directed against. In such cases, the ordinary limitation rules become too strict. The law therefore provides a special rule.

The first paragraph, letter a, concerns persons under guardianship (vergemål). If a person under guardianship has a claim against their guardian, it may be unreasonable to let the period run as normal while the guardian is still in the role. The guardian is, after all, often the very person who is supposed to look after the person's interests. If the guardian has done something wrong, the person under guardianship may need extra protection.

This is why the law says that limitation occurs no earlier than 1 year after the appointment has ended. The appointment is the role as guardian. When the person is no longer guardian, the one who has the claim gets at least 1 year to assert it.

The first paragraph, letter b, concerns non-personal right-holders. This means legal entities, such as a limited company (aksjeselskap), public limited company, association or foundation. Such right-holders can have claims against a co-owner or a member of a body. A body means, for example, the board, the day-to-day management or another decision-making body.

One example is a limited company that has a claim against a board member (styremedlem) because the board member has caused the company a loss. As long as the board member sits on the board, it can be difficult for the company to bring a claim. The person may have influence, control over documents or sway over decisions. This is why § 12 says that limitation occurs no earlier than 1 year after the appointment has ended.

But the rule has an important limitation. If the proper person, meaning the person who can assert the claim on behalf of the creditor (fordringshaver), becomes aware of the circumstances before the appointment ends, the period runs from that earlier point in time. This prevents the company or right-holder from getting an unnecessarily long period when someone with the right authority already knows enough to act.

The first paragraph also says that the rule applies between the bankruptcy debtor and the bodies of the estate. This is more technical. When someone goes bankrupt (konkurs), the bodies of the estate take over certain tasks. If liability arises in that role, the law applies the same reasoning.

The second paragraph concerns partnership agreements. If a member is obliged under the partnership agreement to make a contribution to the company's assets, limitation only starts when the membership has ended and the company has been notified of this. A contribution to the company's assets means that the member must put money or assets into the company. The law says that the period does not begin until the member has left and the company has been told.

Why do claims against guardians and board members get extra time?

Because there is often a conflict of loyalty. A guardian is supposed to look after the interests of the person under guardianship. A board member is supposed to look after the company's interests. If that same person does something that gives rise to a claim against them, it can be difficult for the right person to discover or pursue the claim while the appointment lasts.

Think of a guardian who manages money incorrectly. The person under guardianship may be unable to discover the error. The guardian is not necessarily going to sue themselves. If ordinary limitation ran without a special rule, the guardian could in practice get away with it simply by sitting still long enough.

Think also of a board member who has acted disloyally towards the company. If the board member still has control or influence, the company may be slow to react. Documents may be withheld. The matter may be pushed aside. § 12 gives the company at least 1 year after the person has left the role.

The rule does not mean that claims always stay alive for a long time. If a new guardian, a new board, an estate administrator (bostyrer) or another proper person learns of the circumstances, the period can start then. The law protects against hidden control, not against inaction by someone who is actually able to act.

This is the balance in § 12: extra protection when it is difficult to assert the claim, but not unlimited time if the right person already knows enough.

What does «the proper person» mean?

«The proper person» means the person who can actually assert the claim on behalf of the one who has the claim. For a person under guardianship, this can be a new guardian, a temporary guardian or another person with the right authority. For a limited company, it can be the board, a new board, the general meeting in certain situations, or someone who has the right to act on behalf of the company.

This is important because knowledge held by the wrong person is not always enough. If the person who made the mistake knows about it themselves, that cannot automatically harm the one who has the claim. What matters is whether a person who can act for the right-holder knows the circumstances the claim is based on.

But once the right person knows enough, action must be taken. The period can then begin. You cannot wait for many years and say that the appointment had not ended, if someone with authority could already have brought the claim.

This can become relevant in companies. If the whole board knows about a possible liability claim against a board member, the period can start before the person steps down. If, on the other hand, the board member hides the circumstances and nobody else with authority knows enough, § 12 can give extra time.

What applies to company contributions?

The second paragraph deals with a member who, under a partnership agreement, must make a contribution to the company's assets. This is not an ordinary invoice (faktura). It concerns an internal obligation in a company. The member has committed to contributing money or assets.

Limitation only starts when two things have happened: the membership has ended, and the company has been notified of this. Notification means being told. Both must be in place.

This makes sense because such contribution obligations are often tied to the membership. As long as the membership continues, it may be unclear when the claim should be pursued as an ordinary claim. When the member leaves and the company is told, the period starts.

This is most relevant in company relationships, not in ordinary consumer cases. But for people who run a business together, the rule can be important. It can apply where the company agreement says that the participants must make deposits or contributions.

What happens if you get it wrong?

If you overlook § 12, you may believe that a claim is time-barred even though it can still be pursued. This is especially important in guardianship, board liability and foundations. Cases where a person of trust has abused their role should not be written off too quickly.

But the opposite mistake is also dangerous. You may believe that the claim stays alive as long as the appointment lasts, even though someone with the right authority already knew the circumstances. The period may then have started earlier. The point in time when knowledge was obtained must therefore be examined carefully.

If you do not document dates, the case becomes more difficult. When did the appointment end? When did the right person gain knowledge? What did they know? What should they have done? These questions can decide the limitation issue.

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If the case concerns a guardian, get an overview of when the guardianship assignment started and ended. Find out when the new guardian or another proper person gained knowledge of the circumstances. Collect bank statements, decisions, messages and accounts.

If the case concerns a company, find the date of resignation. Check minutes, board meetings, emails and accounts. Find out when the board or others with authority actually gained knowledge of the circumstances.

If you sit on a new board and discover a possible claim, do not wait. Send a written notice. Get an overview of the amount. Consider interruption of the limitation period (fristavbrudd). § 12 gives extra time in some situations, but it does not offer any safety for inaction.