Product Liability and Warranty Litigation in Norway

Under the Norwegian Product Liability Act (Norwegian: produktansvarsloven), product liability is primarily a statutory, strict liability regime. The central provision establishes objective liability where damage is caused by a product that does not offer the safety which a user or the public could reasonably expect. Fault is not required, though causation between the product’s safety defect and the damage must be shown. The Act co-exists with other legal bases of liability; it expressly does not limit the right to claim compensation on other grounds. For medicinal products, a special chapter provides an even more claimant-friendly objective causal liability backed by a mandatory insurance scheme for personal injury. 

Alternative grounds for claims include general principles of tort law (such as case law established culpability-based liability). If fault can be demonstrated on the part of the supply chain, as well as a causal link between the fault and a qualified personal injury or financial loss, a claim can be brought forward on general culpability grounds. Unlike the Product Liability Act, tort liability normally requires proof of fault, typically negligence or intent by the potentially liable party. As the Product Liability Act implies objective, statutory liability, regulation pursuant to this Act will often override or consume claims on general culpability grounds. 

Product liability claims can also be based on contractual warranty provisions under for instance the Norwegian Purchase Act, the Norwegian Consumer Purchases Act or the Norwegian Digital Content Act. 

The Norwegian Consumer Purchases Act specifically regulates to also be applicable for digital content which, pursuant to the sales agreement, is to be delivered together with goods and which is interconnected with the goods in such a way that the content is necessary for the goods' functions. This applies regardless of whether the digital content is to be delivered by the seller or a third party. If there is doubt as to whether delivery of the digital content is covered by the sales agreement, it shall be assumed that the content is covered by the agreement.

Further, the Norwegian Digital Content Act regulates agreements concerning digital content and digital services to consumers and applies i.e. to software, streaming services, games and other digital services delivered over the internet. 

Both the Consumer Purchases Act and the Digital Content Act include mandatory provisions protecting the consumer’s rights in case of i.e. defects or errors detected in a product. 

Contractual liability typically involves strict liability, meaning that the seller is liable if the product does not conform to the agreed-upon specifications at the time of delivery, or to what the buyer reasonably could expect, irrespective of fault. This strict liability applies in particular to claims for cure (repair or replacement), rescission, and price reduction. Regarding claims for damages, the seller may avoid responsibility if they can show that the defect was caused by a hindrance beyond their control.

A “product” under the Product Liability Act covers all goods and material objects, whether natural or industrial, raw materials or finished goods, components or main products, including when incorporated into other composed objects or into real estate. Electricity is included in the definition. Intangible assets such as immaterial property rights, are not “material objects” and are omitted. It is noted in legal literature that it is unresolved whether standalone IT software is covered, though products containing software are within the scope as material objects/goods. However, Norway is via EEA in the process of assessing implementation of the EU Directive 2024/2853 of the European parliament and of the Council on liability for defective products and repealing Council Directive 85/374/EEC. The Directive holds a new definition of "product," which clarifies that the term encompasses digital manufacturing files and software. Hence, if and when the Directive is implemented into Norwegian law, software will be comprised by the definition of “products”. As the Directive leaves little to no room for national adjustments, the Norwegian legislation on product liability will generally be harmonized with the EU legislation after implementation of the EU Directive 2024/2853.

As mentioned above, digital content which, pursuant to the sales agreement, is to be delivered together with goods and which is interconnected with the goods in such a way that the content is necessary for the goods' functions is regulated by the Consumer Purchases Act. Consumer purchases of other intangible products (i.e. streaming services and software) are regulated by the Norwegian Digital Content Act. These Acts are applicable for consumer purchases only. 

The Product Liability Act does not draw general consumer/business product distinctions for the definition; however, recoverable property damage is limited to damage to items of a kind normally intended for private use and actually used mainly for private purposes.

Claims may be brought by injured parties suffering personal injury or qualifying property damage. The Act also contains rules allowing for compensation in pharmaceutical personal injury cases regardless of fault or proof of a safety defect, via direct action against the mandatory insurance. The Act itself does not specify who may sue on behalf of deceased persons.

In general, claims on behalf of deceased persons are subject to case by case evaluation. Whether a party is the proper entitled pursuer of a claim in Norwegian civil procedure, is subject to an assessment of the person’s connection to the claim. Specifically, the Norwegian Dispute Act sets the prerequisite that the claimant must demonstrate a genuine need to have the claim decided against the defendant and that this shall be determined based on an overall assessment of the relevance of the claim and the parties' connection to the claim.

Recoverable damages under the Product Liability Act are compensation for personal injury and qualifying property damage. Pure economic loss and non-pecuniary loss are not within the Act’s scope (but may be subject to claims on other grounds, such as tort law). For property damage, a deductible of NOK 4,000 must be subtracted. As to quantum and heads of loss, the Act refers to general tort law rules for assessment, measurement, and reduction; those general rules apply to product liability claims within the Act’s scope. 

Damages for non-material losses (pure economic loss) may be pursued under general tort law or contractual law.

A product is “defective” according to the Product Liability Act if the product fails to provide the safety which a user or the public could reasonably expect. This is assessed objectively regarding all circumstances relating to the product, including its presentation, marketing, and predictable use. The benchmark is the safety reasonably expected at the time the product was put into circulation. 

In essence, to succeed with a claim under the Product Liability Act, the claimant must demonstrate that (1) the product is defective as defined above, (2) the defect has caused damage, and (3) there is a causal link between the defect and the specific injury or property loss. Fault is not required to prove a defect according to the Act.

Under contractual law, a product is defective if it lacks the agreed-upon characteristics or fails to meet objective requirements for conformity as set out in for instance Section 17 in the Norwegian Purchase Act, Section 15 of the Norwegian Consumer Purchase Act or Section 10 of the Norwegian Digital Content Act. This includes the product's suitability for its intended use and adherence to expected quality and durability.

The claimant bears the burden to prove damage, defect (safety shortfall), and causation between the defect and the damage for claim under the Product Liability Act. Although the Act does not expressly allocate burden of proof, this follows from general Norwegian legal principles and is reflected in the legal review commentary, noting courts may calibrate the strength of proof required in light of evidential asymmetries and alternative causal explanations. There is no general statutory reversal of the burden in the Product Liability Act.

For claims brought forward under the Consumer Purchase Act, Section 18 states that unless otherwise proven, a defect that manifests within two years after delivery of the goods shall be presumed to have existed at the time of delivery. If the agreement concerns digital services to be delivered on a continuous basis, the seller shall, unless otherwise proven, be presumed to be liable for defects that arise or manifest within the period during which the digital services are to be delivered, but in any case for at least two years from when delivery of the services commenced. The presumption shall however not apply if it is incompatible with the nature of the goods or the defect.

For claims brought forward under the Digital Content Act, and the agreement concerns continuous delivery over a period and a defect in the digital content manifests during that period, the burden of proof is on the supplier to demonstrate that the content has been in conformity with the requirements of the Act’s Sections 7, 8 and 9 throughout the entire period. Where the agreement concerns a single digital delivery or several individual deliveries, and a defect in the content manifests within one year of delivery, the defect shall be presumed to have existed at the time of delivery, unless the supplier proves otherwise.

Courts assess defectiveness with reference to all relevant circumstances, including foreseeable use, instructions, and warnings, as well as the product’s presentation and marketing. Ordinary use should be safe. Where risks are known and necessary for the product’s function, liability is normally excluded. Use outside predictable parameters, or contrary to clear and reasonable instructions, generally defeats claims of defectiveness.

In contractual law, a product is generally considered defective if it does not fulfill the agreed-upon characteristics or fails to meet objective requirements for conformity as set out in for instance section 17 in the Purchase Act and section 15 of the Consumer Purchase Act. Under contractual warranty regulatory requirements or safety standards will also be relevant as this in many cases probably also would entail that the product does not meet the standard that the buyer could expect.

Entities within the supply chain who can be liable according to the Product Liability Act include the “producer,” defined broadly to cover manufacturers, those who present a product as theirs (own-branders), importers, and, in specified circumstances, distributors (e.g., where the producer cannot be identified and the distributor fails promptly to identify the producer or prior distributor). 

Component manufacturers may also be held liable in some cases. When the damage is caused by a safety defect in a raw material, semi-finished product or other product (component product) which, at the time of the damage, has been incorporated into a main product, both the manufacturer of the component product (the component manufacturer) and the manufacturer of the main product (the main manufacturer) are liable. The component manufacturer is nevertheless not liable if he demonstrates that the safety defect in the component product is attributable to the main manufacturer's design, construction or specification, and that he cannot be blamed for having followed them.

In tort law, any party in the supply chain that breaches a duty of care and thereby causes damage may be liable. This could include producers, suppliers, wholesalers, or retailers; the latter, however, only if they negligently handled or failed to inspect the product. Liability depends on whether the defendant exercised adequate care in their role. 

Under contract warranty law generally the seller or an underseller may be held liable.

If multiple parties are responsible, liability is joint and several from the perspective of the injured party. The Product Liability Act directly provides joint liability for component producers and main product producers for damage caused by a component’s defect when the component is integrated in a main product at the time of injury, subject to a narrow defense for the component producer if the defect is attributable to the main producer’s design or specifications and the component producer is not at fault for following them. The Act leaves internal contribution between liable parties to general recourse claim rules.

The same principle applies for joint liability based on tort claims. 

In contractual warranty cases, the seller is primarily liable to the buyer, even if the defect stems from a third party (e.g., the producer). It is, however, also possible to claim compensation from upstream suppliers or producers under section 35 of the Consumer Purchase Act and section 84 of the Purchase Act, assuming statutory or contractual conditions are met.

Defenses include:

• Demonstrating that the product did not suffer from any defects;
• Demonstrating that the product was not put into circulation as part of the defendant’s business; 
• Demonstrating that the defect did not exist when the product was put into circulation and the producer could not reasonably have prevented or remedied the defect or damage thereafter.

The second ground reflects that post-circulation changes (e.g., wear, misuse, improper storage, reworking) can create hazards for which the producer is not strictly liable, but may still incur negligence-based responsibility if, after learning of a risk, the producer failed to take reasonable remedial measures such as warnings or recalls.

In tort claims a defendant may defend themselves by proving the absence of fault (i.e., that all due care was taken in product design, production, instructions, and post-market surveillance). If the damage was caused by misuse or third-party interference, or if the claimant contributed significantly to the damage, this may either exclude liability or lead to a reduction under the principle of contributory negligence. 

In contractual warranty cases, the seller may for instance avoid liability by proving that there is no defect or that the defect did not exist at the time of delivery.

Contractual exclusions or limitations of liability under the Product Liability Act are invalid (see the Product Liability Act, section 2-6). The statute is mandatory vis-à-vis injured parties, though businesses may allocate risk among themselves provided this does not reduce the injured party’s rights.

For cases covered by the Consumer Purchase Act or the Digital Content Act, liability cannot be limited or excluded. These Acts clearly state that terms and conditions less favourable to the consumer than those flowing from the provisions of the Acts may not be agreed upon or enforced. 

The Purchase Act on the other hand is largely derogative, and other regulations may be agreed upon between the relevant parties. 

Limitation for claims under the general product liability chapter in the Product Liability Act is three years from the date the injured party obtained or should have obtained necessary knowledge of the damage, the safety defect, and the producer’s identity, with a long-stop of ten years from when the product was put into circulation. For pharmaceutical injury claims under the special chapter, general limitation rules apply with a special maximum long-stop of twenty years from when the medicinal product was given to the patient. 

The Consumer Purchase Act and Digital Content Act have specific regulations regarding time limitations for claims regarding defects, errors and similar. These Acts do not provide for damages for loss resulting from personal injury.

Yes, in Norwegian practice, product-related disputes are frequently pursued on contractual grounds alongside or instead of statutory product liability, with implied warranties, subject to commercial regulation such as the Purchase Act and the Consumer Purchase Act. 

The core “implied warranty” concept is the contractual conformity regime: the subject of the transaction must have the qualities agreed or otherwise required by the Act, including attributes conveyed through descriptions, samples, and public statements attributable to the seller.

In non-consumer sales, this regime is largely derogative and may be modified by agreement; parties often tailor warranties and remedies contractually.

Separately, an “assured properties/guarantee” (Norwegian: tilsikring/garanti) given by the seller entails an objective damages liability if the assured quality was lacking at contract time, covering both direct and indirect loss under The Purchase Act section 40(3)(b). This sits beside the implied conformity regime and often functions as an express warranty with stricter consequences.

If a product is defective within the meaning of for instance the Purchase Act or the Consumer Purchase Act the buyer is entitled to several remedies. This could include the following: 

• Cure (repair or replacement) at the cost of the seller,
• Price reduction, measured correspondingly to the financial loss the defect has inflicted on the claimant, 
• Rescission, withdrawal from the contract altogether, with restitution of paid amount in exchange for recall of the product. Recission is normally subject to the special legal condition that the defect is “substansive”. 
• Damages. 

If the defect can be repaired or replaced, and repairs/replacement are offered by the seller, the buyer will normally be obligated to accept such remedies, provided they are reasonably likely to restore the product to standard-conformity. 

No. Norwegian law operates on a principle of “restitution”, whereby damages are intended to restore the loss-incurred party’s position to that of contract-compliance. In the case of a defective sales good, the idea of any remedies is to place the buyer in the position he would have been had the contract been properly fulfilled. 

There are no rules under Norwegian law that specifically regulate document disclosure in product liability litigation. The general rules in The Dispute Act cover these cases. 

Generally, the parties in a civil case are entitled to present such evidence as they wish. There are some limits to this right as the evidence generally has to be of relevance to the case and that the scale and scope of the presentation of evidence should be reasonably proportionate to the importance of the dispute. 

The parties also have a duty to ensure that the factual basis of the case is correctly and completely explained, and they shall provide such accounts and present the evidence necessary to fulfil this duty. The parties shall also disclose the existence of important evidence that is not in his or her possession and of which he or she has no reason to believe that the opposite party is aware. This applies irrespectively of whether such evidence favors the case of the party or that of the opposite part. There is also a general duty for all persons to testify and give evidence. 

There are some exceptions to the duty to disclose evidence, for instance in some cases for business secrets. The court may nevertheless order such evidence to be made available if, after balancing the relevant interests, the court finds this to be necessary.

There is no specific regulation regarding group or class action litigation for product liability claims. These litigations are covered by the Dispute Act. The Dispute Act chapter 35 regulates class actions. A class action can after this be brought if several legal persons have claims or obligations for which the factual or legal basis is identical or substantially similar, the claims can be heard by a court with the same composition and principally in accordance with the same procedural rules, class procedure is the most appropriate method of hearing the claims, and it is possible to nominate a class representative pursuant to Section 35-9. Only persons who could have initiated or joined an ordinary action before the Norwegian courts may be class members.

A class action may be initiated by any person who fulfils the conditions for class membership if approval to bring the action is granted, or organisations and associations, and public bodies charged with promoting a specific interest, provided that the action falls within its purpose and normal scope pursuant to Section 1-4

Both opt in and opt out procedures are possible. The court can decide that persons who have claims within the scope of the class action shall be class members without registration in the class register (opt-out), if the claims individually involve amounts or interests that are so small that it must be assumed that a considerable majority of them would not be brought as individual actions, and are not deemed to raise issues that need to be heard individually (§ 35-7). Unless the action is brought pursuant to § 35-7 the class action shall only include those who are registered as class members (opt-in).  

Product liability cases expenses are normally covered by the claimants themselves. Claimants with qualifying low income and wealth may apply for free legal aid, which is a welfare program whereby the state provides economic support (possibly subject to co-payment) in legal proceedings. Legal expenses insurances are common, and are often an important source of legal expense funding for consumers and other non-commercial, personal subjects. 

Third party litigation funding is less common. 

The successful claimant may be entitled to full compensation, which covers all necessary costs incurred by the party in relation to the action, unless there is cause to exclude the costs pursuant to special provisions. Recoverable costs may include for instance court fees based on the value of the claim, attorneys’ fees and costs of expert opinions, witness expenses, and translation. 

The courts determine the final amount of recoverable costs, based on an assessment of whether the costs were “necessary”. It is not uncommon for the courts to impose reductions on litigation cost claims. In rare cases, a successful party may not be awarded litigation cost claims at all.

Contingency fee arrangements are not permitted under the Norwegian Lawyers’ Association’s code of conduct. “No cure, no pay”-arrangements where the legal fees are based on accepted billing practices are generally permitted. 

There is limited Norwegian case law relating to the Product Liability Act.

As mentioned above, the new EU Product Liability Directive (Directive (EU) 2024/2853) may be relevant for Norwegian product liability legislation. The directive aims to modernize the regulation of product liability within the EU, with emphasis on updating the term “product” and strengthening the position of the claimant in the light of technological advances and new business models.

Norway is not part of the EU, but adopts and incorporates a significant portion of EU legislation as a result of Norway’s inclusion in the EEA. Constitutionally, Norway operates on a principle of dualism and incorporation, whereby relevant EEA legislation must be incorporated into Norwegian law by specific acts of legislation from the parliament. The directive has not yet been incorporated into Norwegian law. However, it is the public position of the sitting government that the directive is EEA relevant and is passable as Norwegian law, through remediating the Product Liability Act to conform with the new directive. Such incorporation will be subject to the consent of the parliament, although there is every reason to believe the directive will be incorporated into Norwegian law.