§ 41. When a third party has rights in the goods

If it turns out that someone else has rights in the goods — for example a lien (pant), ownership or a patent right that affects your use — that is a "legal defect" (rettsmangel). You have the same claims as with other defects (mangel). A notice of complaint (reklamasjon) must be given within a reasonable time, but the two-year deadline does not apply. You are always entitled to compensation (erstatning) for losses you could not foresee.

The Sale of Goods Act (Kjøpsloven)·LOV-1988-05-13-27

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) If a third party has ownership, a lien or another right in the goods (legal defect), the rules on defects apply correspondingly unless it follows from the agreement that the buyer (kjøperen) is to take over the goods with the limitation that the third party's right entails. The two-year deadline for notice of complaint in § 32 (2) nevertheless does not apply.

(2) The buyer may in any case claim compensation for loss resulting from a legal defect that existed at the time of the purchase and that he neither knew nor ought to have known about.

(3) If a third party claims to have a right in the goods and this is disputed, the rules in the first and second paragraphs apply correspondingly when the claim is not clearly unfounded.

(4) For third-party claims based on intellectual property rights, the rules in the first paragraph apply correspondingly.

Source: Lovdata — Kjøpsloven (the Sale of Goods Act) § 41

What does this mean?

You have bought an item and believe it is free and yours. Then it turns out that someone else has a claim in the item. That is a "legal defect" — not a fault in the item itself, but a legal burden you did not know about.

Three typical examples:

Main rule (first paragraph): The same claims as with other defects — repair of the defect (retting), replacement (omlevering), price reduction (prisavslag), cancellation of the purchase (heving), compensation. Exception: if you have agreed that you will take over the item with the limitation that the third party's right entails (typically: you knew about the lien and paid less).

No two-year deadline: The absolute two-year deadline in § 32 (2) does not apply to legal defects. The reasoning: a legal defect can stay hidden for decades without becoming visible.

You always have the right to compensation (second paragraph) for losses from a legal defect that existed at the time of the purchase and that you did not know about or ought to have known about. This is stronger than ordinary compensation — you do not need to show that the seller (selger) was negligent.

Disputed claim (third paragraph): If a third party claims to have a right, and this is disputed, the rules apply "when the claim is not clearly unfounded". So you do not have to wait for a final judgment — it is enough that the claim is real.

Intellectual property rights (fourth paragraph): Patent, trademark, copyright — the same rules apply.

Examples

Petter buys a used car for NOK 95,000 from Lars. Three months later he gets a letter from the bank: the car has a registered lien of NOK 40,000 from Lars's time as owner. The lien is still active because Lars has not paid off the debt. This is a legal defect under § 41. Petter can demand that Lars clears the lien, a price reduction corresponding to the loss in value, cancellation of the purchase if the lien is significant, or compensation. The two-year deadline in § 32 does not apply.

Anne buys a used camera from Tom for NOK 18,000. Three weeks later the police come and say the camera is stolen — the owner wants it back. Tom had no ownership to transfer. That is a legal defect under § 41 (1). She loses the camera and can claim full compensation from Tom under § 41 (2): her money back plus any direct loss (direkte tap).

Marius runs a small electronics shop and imports a specialty product from Asia. He sells some before he receives a claim from a patent holder: the product infringes a European patent. Under § 41 (4) this is a legal defect — even though the item itself is flawless. Marius can claim replacement, price reduction, cancellation of the purchase, or compensation from his supplier.

Common mistakes

  1. Confusing a legal defect with an ordinary defect — the deadlines are different
  2. Believing the two-year deadline also applies to legal defects — it does not
  3. As a buyer: forgetting to check whether the car has a lien before buying — you can avoid this yourself
  4. As a seller: forgetting to disclose existing encumbrances

What should you do?

As a buyer:

As a seller:

Frequently asked questions

What is the difference between a legal defect and an ordinary defect?
Ordinary defect = something wrong with the item itself. Legal defect = something wrong with the rights to the item. The rules are the same, but deadlines and burden of proof (bevisbyrde) differ somewhat.
Do I need to check for liens on everything I buy?
For expensive items such as a car, boat or snowmobile — yes, definitely. For smaller purchases it is normally not worth it.
Related sections
All sections of the Sale of Goods Act →
Questions about this section
Tools for this