§ 21. When must the defect have existed?
What matters is whether the defect (mangel) existed when the risk (risiko) passed to you, usually on delivery (levering). Even if the fault only appears later, it can still be a defect if the cause was in the goods from the start. The seller (selger) is also responsible for faults that arise later if they are caused by his breach of contract (kontraktbrudd), or if he has given a guarantee (garanti).
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) When assessing whether the item has a defect, the time when the risk passes to the buyer shall be decisive, even if the defect only becomes apparent later.
(2) The seller is also liable for a defect that arises later if it is due to a breach of contract on his part. The same applies if the seller, by a guarantee or in some other way, has assumed responsibility for the item having specified properties or being fit for ordinary use or a particular use for a period of time after delivery.
What does this mean?
The law answers an important question: a fault appears three months after the purchase. Is it a "defect" the seller must answer for, or just normal wear and tear?
The rule is: the fault must have existed when the risk passed to you (typically on delivery, see § 13). This does not mean the fault must have been visible. It may have been hidden as a weakness in the goods and only become a problem later. It is still a defect.
Example: an engine with a manufacturing fault that only breaks down after two months of use. The fault was in the engine from the start, and it is a defect.
Two situations where the seller is also responsible for later faults:
- The seller's breach of contract (second paragraph, first sentence): If the fault arises later because the seller did something wrong, for example installed something incorrectly, it is the seller's responsibility.
- Guarantee (second paragraph, second sentence): If the seller has given a guarantee, he is responsible for the goods meeting the guarantee for the whole guarantee period. In that case it does not matter whether the fault was there from the start.
Comparison: Was there a defect?
| Situation | Defect? |
|---|---|
| Fault was hidden, appeared after 2 months | Yes, if the fault can be traced back |
| Normal wear and tear | No |
| Damage you caused through use | No |
| Fault arose because the seller installed incorrectly | Yes |
| Fault within the guarantee period | Yes, if covered by the guarantee |
Examples
Marius buys a used car for NOK 120,000. After three months, the drivetrain fails. The garage says the wear indicates that it had been developing for a long time, including before the purchase. Even though the fault only showed itself after the purchase, the problem was present at delivery. It is a defect under § 21 first paragraph. Marius must be able to document this; an assessment from a garage is normally evidence. He can make a complaint about a defect (reklamasjon) under § 32.
Ingrid buys a coffee machine with a 2-year guarantee on the pressure system. After 14 months, the pump fails. It turns out to be normal wear and tear, not a built-in fault. Normally this would not be a defect under § 21 (1). But since the seller has given a guarantee on the pressure system, he is responsible anyway under § 21 (2). Ingrid is entitled to a repair or replacement (omlevering).
Common mistakes
- Thinking that if the fault appears after the purchase, you cannot complain: wrong
- Thinking that all later damage is your own fault: it depends on the cause
- Forgetting that the burden of proof (bevisbyrde) lies with you under the Sale of Goods Act (in a consumer purchase (forbrukerkjøp) it is the opposite for the first 6 months)
What should you do?
As a buyer:
- Get a professional assessment when the fault appears: a garage, a surveyor
- Document with photos and reports
- Complain quickly after you discovered the fault (§ 32)
As a seller:
- Be clear about what any guarantee covers
- Stay within what you have actually promised
- If the buyer complains: ask for documentation of when the fault arose
Frequently asked questions
The car seemed fine for five weeks, then the engine broke down. Is it my fault?
What is the difference between a guarantee and the right to complain about defects?
- § 13When the risk passes
- § 17When the goods have a defect
- § 32Deadlines for complaints
- § 40Compensation for defects