Categories of Invalidity in Norwegian Contract Law: Total, Partial, Absolute, Relative, Strong, and Weak

Invalidity in contract law is not a single entity, but appears in several different forms with various legal effects. This article explores the central categories of invalidity in Norwegian law: full and partial invalidity, absolute and relative grounds for invalidity, as well as strong and weak grounds for invalidity. Understanding these distinctions is crucial for assessing a contract's validity and the legal remedies available.

Total and Partial Invalidity

Main Rule: Total Invalidity

The main rule in Norwegian contract law is that a contract affected by a ground for invalidity will be entirely invalid. Consequently, courts typically only have the option between full validity or full invalidity of the contract.

Reservations and Exceptions

There are several important reservations from this main rule:

1. Divisible Performances

When a single contract contains multiple performances that are divisible in the sense that each individual performance can be independently disposed of, there may be grounds for partial invalidity.

This is particularly relevant if the disposition consists of several independent performances where the consideration is determined for each performance. An example is a contract for the delivery of several ships in the same contract, where invalidity affects only the ships not yet delivered.

2. Localized Invalidity Defects

Partial invalidity can also arise where the factor causing the invalidity only "clings" to a part of the contract. This could be the case, for example, where a promissory note for 100,000 kroner is partly based on a remainder of a purchase price and partly on a loan given under illegal terms.

3. The Contracts Act § 36

In cases of invalidity under the Contracts Act § 36, there is openness for a more nuanced approach to legal effects. Here, courts may choose to modify the contract content instead of declaring it completely invalid.

4. The Price Regulation Act

Regarding invalidity under the Price Regulation Act § 2, the financial legal effects follow from the same Act’s § 6, which allows for a more nuanced assessment of the legal effects.

5. Content Defects

In cases of invalidity due to content defects, typically where the contract violates law or decency (NL 5-1-2), it is often only the parts of the contract that are unlawful that will be nullified. However, the nullification of a clause that is of significant importance to one party can trigger "full" invalidity for the entire contract.

When a clause is nullified, principles from the Contracts Act § 36 or presumption may be used to supplement the contract, ensuring that lawful rights under the contract are preserved. Alternatively, this could result from interpreting the contract.

Absolute and Relative Grounds for Invalidity

Starting Point: No Waiver of Invalidity in Advance

A party cannot, before or in connection with entering a contract, commit to the contract not being set aside as invalid. This follows from the mandatory nature of the invalidity rules.

Relative Grounds for Invalidity

However, in many cases, the parties may after entering the contract approve (ratify) the promise, thereby repairing the invalidity. Grounds for invalidity that can be repaired by subsequent approval are called relative grounds for invalidity.

Absolute Grounds for Invalidity

Absolute grounds for invalidity, on the other hand, cannot be repaired subsequently. This covers:

• Promises that violate law or decency (NL 5-1-2)

• Instances where the approval is affected by the same ground for invalidity as the "main promise"

An example of the latter is that a person with a mental disorder cannot approve a disposition motivated by the mental disorder through another disposition also motivated by the same disorder.

Main Rule: Relative Invalidity

The main rule in Norwegian law is that grounds for invalidity are relative, with the mentioned exceptions.

Strong and Weak Grounds for Invalidity

The distinction between weak and strong invalidity is fundamental in the doctrine of invalidity.

Strong Grounds for Invalidity

A strong ground for invalidity can be asserted even against a promisee in good faith, i.e., who did not exhibit negligence at the time of the promise.

Examples of strong grounds for invalidity:

• Gross coercion

• Incompetence

• Mental disorder

• Contractual relationships contrary to NL 5-1-2

• Forgery, falsification, and misrepresentation

Weak Grounds for Invalidity

A weak ground for invalidity, on the other hand, can only be invoked against a promisee in bad faith or negligent.

Examples of weak grounds for invalidity:

• Fraud

• Minor coercion

• Misapprehension, including cases covered by the Contracts Act § 33

The timing for assessing good faith is regulated by the Contracts Act § 39.

Significance of the Distinction

The distinction between weak and strong invalidity primarily matters for the invalidity rules where the legislator has attempted to address the conflict between one party's will and the other's expectation ("will and declaration"), typically regarding defects upon formation according to the Contracts Act §§ 28-33.

For content defects, primarily covered by the Contracts Act § 36, the distinction is mainly irrelevant. This is because the condition causing invalidity will generally be equally "visible" to both contracting parties.

Nevertheless, certain reservations must be made concerning the Contracts Act § 36, where the promisee's bad faith can, in some cases, be relevant for the assessment.

Summary

The categories of invalidity in Norwegian contract law provide a nuanced picture of when and how contracts can be deemed invalid:

1. Full/Partial Invalidity: Determines whether the entire contract or just parts of it are invalid

2. Absolute/Relative Invalidity: Determines whether invalidity can be repaired by subsequent approval

3. Strong/Weak Invalidity: Determines whether the counterparty's good faith protects against invalidity

These distinctions are crucial for assessing the legal effects of invalid contracts and the possibilities for salvaging parts of the contract or repairing the invalidity. Knowledge of these categories is therefore essential when legally advising on agreements that may be subject to grounds for invalidity.