1. Background of the theme

Case law in the field of contract law is usually concerned with how agreements between the parties are to be understood. When the Court decides on this, the agreement between the parties must be interpreted.

Interpretation of agreements is done in a number of different contexts, and not only in the area of contract law. In jurisprudence, therefore, some doctrines have developed about contract interpretation in general, which we write a little about in a separate article called “Interpretation of the Agreement”; read more here.

In addition, the standard contracts (e.g. NS 8407) contain their own interpretation provisions. We write about these when we review the most relevant provisions of the various standard contracts.

Interpretation of contracts assumes that there is in fact a contract, and at least that an agreement has been concluded. Several judgments therefore deal with whether a contract has been concluded at all, and several judgments are also about what has been agreed upon. The latter is the topic when interpreting a contract, but in some cases there is even no agreement document. Consequently, the judges' job really becomes more a form of evidentiary assessment, than mere agreement interpretation.

In light of this, we have also written articles on how agreements are made, and what is required.

In one article we have written about deals that come about through offers and acceptance. That article has its main focus on contract law and is called “Agreements concluded through offer and acceptance”; read more here.  

In the second article we write about agreements concluded through negotiations and, in this regard, the use of reservations. This article has been called “Negotiations and the Importance of Reservations”; read more here.

If one does not make reservations and the parties act towards each other in certain ways, one may end up in a situation where one party believes that a legally binding agreement has been concluded. We also wrote an article about this situation called “Agreements through conclusive conduct or inaction”, read more here.

We have also written an article on whether agreements can come into being, or fall away, through inaction, inaction or

2. Three basic conditions

2.1 Full freedom of contract (with some exceptions)

In Norway, the starting point is that it is up to the individual whether you want to enter into an agreement, who in that case you want to enter into an agreement with, and what the content of the agreement should be based on.

Since we write for all actors in the construction and construction industry, we must clarify that the Public Procurement Act and its related regulations set a number of restrictions and requirements for public actors when it comes to the procurement of building and construction contracts. These regulations are immutable and thus represent an intervention in the first place regarding complete freedom of contract.

The same applies to consumer legislation such as the bustad entry law. In agreements between a professional and a consumer, it is not allowed to agree terms that are stricter towards the consumer than that provided by the bustad entry law.

A third exception, which is also due to mandatory legislation, is cooperation agreements that conflict with competition law. Such agreements are not allowed to enter into, and violations can be sanctioned by very strict means.

A fourth exception applies to agreements contrary to “honourability”. Within the construction industry, it is a well-known problem that employment agreements are concluded with wage conditions that are far too low compared to the norms and agreements that apply in Norwegian working life. The worst cases of such social dumping can probably be said to be contrary to honesty.

In other words, there is no complete freedom of contract, but this is restricted only in cases where there are immutable laws.

The consequence of this is that courts shy away from setting aside agreements, or terms of agreement, only because one party considers the agreement, or the agreement, to be unreasonable. This is especially important to remember for all those who accept contractual terms that are not negotiated, but only unilaterally determined by one party.

2.2 Freedom of form

With some exceptions, the parties themselves can decide how to conclude an agreement.

The parties can settle for an oral agreement, which may be sealed with a handshake, or write something down on a napkin. In any case, such agreements will depend entirely on being able to trust one's contracting party. A saying goes that oral agreements are just as binding as written ones, and that's absolutely correct. The problem arises when it turns out that the parties disagree on whether an agreement has been concluded, and regardless of the eventual content of the agreement.

Another variant is that agreements are concluded formlessly through so-called conclusive behavior. An example of conclusive behavior is when one goes to the checkout at a grocery store, puts the goods on the tape, and pulls the bank card when the store employee has scanned everything one is supposed to have. This can be done without anyone saying a single word — while making it clear to both parties what kind of agreement is about to be concluded.

An example of an agreement where freedom of form does not apply are employment contracts where it follows from Section 14-5 of the Working Environment Act that the employment contract must be in writing. This law is invariable and provided for the protection of the weak party in an employment relationship, namely the employee.

Another example where freedom of form does not exist is the Regulation on Public Procurement of 12.8.2016 No. 974 § 25-1 (5), which states that a contract is deemed to have been concluded first. “when both parties have signed the contract”.

2.3 Agreements must be kept

That agreements should be kept is something that lies nailed down as a natural part of our cultural circle.

Although the principle is very old, we have a statute from April 15, 1687 that still applies, and it is “King Christian The Fiftieth Norwegian Law” (NL). There are only a couple of provisions in it that still apply, and among these are paragraphs 5-1-2 which state that all agreements that are not “Against the Law, or Honesty” must be held at all points “saasom de entrant ere”.

When bringing a case before the courts, it must be remembered that this provision is firmly rooted in the judges. Therefore, one should not enter into agreements, or contractual terms that one cannot accept in the belief that one can obtain the assistance of the court to revise or annul the agreement or the terms of the agreement. Unless they contravene honorability or immutable legislation, well and mark.

4. The further scheme

In paragraph 1, we have already set out the topics that we have written about in other articles. We do not ignore the fact that articles will be prepared on several topics, but we will have to come back to that in due course. As judgments of interest on the topics dealt with under “Contract Law” are issued, we will supplement the articles.

‍