§ 25. Limitation against one debtor does not always stop claims against others
If several people owe the same claim (krav), limitation (foreldelse) against one of them does not, as a general rule, mean that the claim against the others lapses. But for a guarantee (kausjon) and a guarantee (garanti), a stricter rule applies: if the main claim is time-barred (foreldet) before the guarantor has been followed up in the correct way, the claim against the guarantor may also be time-barred.
Machine-translated from Norwegian. The Norwegian text is the one that applies. Read the original in Norwegian.Norsk English العربية Polski Українська
The text of the law (unofficial translation)
1. The fact that limitation has occurred in relation to one of several debtors (skyldnere) has no effect on the creditor's (fordringshaverens) claim against the others, unless otherwise follows from agreement. 2. In the case of a guarantee or equivalent guarantee, the claim (fordringen) against the guarantor shall nevertheless be deemed time-barred when limitation has occurred in relation to the principal debtor (hovedskyldneren) before the claim has been asserted against the guarantor by steps as mentioned in §§ 15 to 19, unless otherwise follows from agreement.
What does this mean?
§ 25 deals with claims where several people or businesses may be liable. There may be several debtors on the same loan. Several tenants on the same contract. Several people who have damaged something together. Several companies that are liable for the same claim. When there are several debtors, limitation can become complicated.
The first paragraph sets out the main rule: if the claim is time-barred against one debtor, that does not automatically mean the claim is also time-barred against the others. The claim is therefore assessed separately for each. You may have lost the claim against Ola but still have a claim against Kari, if the time limit against Kari was interrupted in time.
This is important in cases of joint and several liability (solidaransvar). Joint and several liability means that several people may be liable for the whole claim. The creditor (kreditor) can then often demand the full amount from one of them. If limitation occurs differently against the various debtors, the creditor can still pursue the debtor against whom the claim is still alive.
But the text says "unless otherwise follows from agreement". This means the parties may have agreed something else. Some agreements may say that liability ends together or is limited in a particular way. In that case, the agreement must be read.
The second paragraph has an important special rule for guarantees and equivalent guarantees. A guarantee means that someone guarantees another person's debt. The principal debtor is the person who actually owes the money. The guarantor is the person who must pay if the principal debtor does not.
For guarantees, § 25 says that the claim against the guarantor is deemed time-barred when the main claim is time-barred before the claim has been asserted against the guarantor by steps under §§ 15 to 19. This means that the creditor cannot let the main claim become time-barred and later pursue the guarantor (kausjonisten) as if the guarantee lived on independently. The guarantee is tied to the main claim.
This must be read together with § 7. § 7 says that the limitation period (foreldelsesfristen) against the guarantor is calculated under the same rules as the main claim. § 25 says what happens when the main claim has actually become time-barred before the guarantor has been followed up in the correct way. The result may be that the guarantor is released.
What happens when several people owe the same claim?
You must assess limitation for each debtor. That is the main point. If you have a claim against three people, limitation may be interrupted against one but not against the others. This can lead to different results.
Imagine that three people together owe you NOK 90,000. You get a written acknowledgement of the claim (erkjennelse) from one of them before the time limit runs out. Limitation is then interrupted against that person under § 14. But the acknowledgement from one debtor does not necessarily interrupt limitation against the others. If you do nothing against the others, the claim against them may become time-barred.
At the same time, § 25 says that if the claim becomes time-barred against one, that does not mean the others are automatically released. You can still claim against the person who acknowledged the claim, or the person you have taken legal action (rettslige skritt) against.
This can be practical, but also dangerous. The creditor must keep track of all debtors. The debtors must also keep track of their own situation. The fact that one co-debtor (medskyldner) has a claim wiped out because of limitation does not necessarily mean that you do.
If one debtor pays the whole claim, the recourse rules in § 8 may become relevant. The person who pays can claim their share from the co-debtors, but the time limit for recourse can be short. Everything is connected.
What is special about guarantees?
A guarantee is different because the guarantor stands behind the principal debtor. The guarantor has not necessarily received the money themselves. The guarantor has promised to cover the debt if the principal debtor does not pay. That is why the guarantor's liability is closely tied to the main claim.
If the main claim becomes time-barred, the creditor loses the right to performance (oppfyllelse) from the principal debtor. It would then often be unreasonable if the creditor could still pursue the guarantor afterwards without having followed up the guarantor in time. That is why § 25 second paragraph says that the claim against the guarantor is deemed time-barred when the main claim is time-barred before the claim has been asserted against the guarantor by steps under §§ 15 to 19.
Steps under §§ 15 to 19 are formal steps. They may be legal action, a complaint to the correct body, enforcement (tvangsfullbyrdelse), bankruptcy/administration of an estate, or a litigation notice (prosessvarsel). An ordinary payment reminder (purring) is not necessarily enough.
This means that the creditor must take care of the guarantor before the main claim becomes time-barred. It is not always enough to just send payment reminders to the principal debtor. If the guarantee is to be preserved, the creditor must consider an interruption of the limitation period (fristavbrudd) against the guarantor.
This is important for the guarantor. If you receive a claim after the principal debtor's debt has become time-barred, you should ask: was the claim asserted against me by steps under §§ 15 to 19 before the main claim became time-barred? If not, § 25 second paragraph may give you a strong argument.
What happens if you get it wrong?
If you are a creditor and only follow up one of several debtors, you may lose the claim against the others. This can be a problem if the person you followed up cannot pay. You may be left with a judgment (dom) against one person with no money, while the claims against the others are time-barred.
If you are a guarantor and pay without checking the main claim, you may pay a claim that was perhaps time-barred against you. Always ask for documentation of the main claim, interruptions of the limitation period, and which steps have been taken against you as guarantor.
If you are a co-debtor, you should know that another debtor's limitation does not necessarily help you. You must assess your own time limit.
Examples
Anne, Marius and Petter are jointly liable for a claim of NOK 60,000. The creditor sends a complaint to the Conciliation Board (forliksklage) against Anne before the time limit runs out, but does nothing against Marius and Petter. The case against Anne ends with a judgment. The claim against Anne lives on and gets a new time limit under § 21. But if the creditor has not interrupted limitation against Marius and Petter, the claim against them may become time-barred. That does not mean Anne is released. § 25 first paragraph says that limitation against one debtor does not automatically affect claims against the others. It works both ways: a claim can live on against one person and be lost against another. If Anne pays the full amount, she may have a recourse claim (regresskrav) against Marius and Petter. She must then look at § 8 and watch the 1-year time limit.
Kari takes out a loan from the bank. Her father, Lars, acts as guarantor. Kari defaults on the loan. The bank sends payment reminders to Kari but takes no legal action against Lars. The main claim against Kari becomes time-barred. Afterwards, the bank demands payment from Lars as guarantor. Lars should then look at § 25 second paragraph. If the main claim became time-barred before the bank asserted the claim against Lars by steps under §§ 15 to 19, the claim against Lars is also deemed time-barred, unless the agreement says otherwise. The bank cannot safely let the main claim die and then revive the guarantee on its own.
Common mistakes
- Believing that an interruption of the limitation period against one debtor always applies to all
- Believing that limitation against one debtor always wipes out the whole claim
- Not following up the guarantor before the main claim becomes time-barred
- Mixing up co-debtors and guarantors
- Forgetting to read the agreement for special rules
What should you do?
If you are a creditor, make a list of all debtors. Set a time limit for each one. Interrupt limitation against everyone you want to keep a claim against. Do not rely on one step automatically covering everyone.
If you have a guarantee, follow up the guarantor before the main claim becomes time-barred. Use formal steps if necessary. An ordinary payment reminder may be too weak.
If you are a debtor or guarantor, ask for a timeline. Ask when the main claim fell due, when it was interrupted, if at all, and which steps have been taken against you.