Underförstådd garanti
Implied guarantee
Author
Summary, in English
What happens if someone does not act according to the contract is often regulated under the title guarantee in (at least Swedish) contracts. Depending on how the guarantee paragraph is written and in what way the object of the contract differ from what is agreed, the consequence might be anything from no responsibility at all or a liability that includes compensation for all losses caused by the break of contract. Therefore, how the guarantee is expressed and its extension has a great economical impact.
Frequently, it appears that a clearly expressed guarantee is missing. It raises the question if a guarantee nevertheless can exist, if the situation can be interpreted as if there is an implied guarantee? This essay aims at finding and analyzing what characterizes the implied guarantee that can be found in precedents from the courts.
The result consists of four common traits of character that has been frequently recurrent in the cases that has been in trial. The first concerns professionalism, that a buyer must be able to trust a recommendation from someone with special qualifications within the relevant field or who otherwise conducts professional activity. Closely connected to the advantage following the knowledge of a professional, there seems to be a tendency to protect consumers or others in an inferior position, as being the weaker part in negotiations before entering into contract and with limited possibilities to control the object of the contract. Another strong argument that frequently appears is that the seller was aware of what the buyer wanted, but still did not perform according to the emphasized requirements, or entered into the contract though must have suspected that the object of contract did not fulfill the requirements of the buyer. Finally, it seems that it also can be taken into consideration if the data was of great importance for the contract, referring primarily to differences compared to fundamental characteristics that must have been presumed by both parties.
It also seems to be of importance that a professional trader and a consumer don’t have the same potential when it comes to inspecting the object of contract, which makes the court demand more of the professional than the consumer.
Occasionally, the court is skeptic to constructing an implied guarantee. In cases concerning infected food and purchase of animals, the court has clearly positioned itself against implied guarantees. They also seem to doubt the construction concerning guarantees of time. Why this construction sometimes is not appropriate is fairly unclear, maybe an ethical perspective sometimes makes implied guarantees inappropriate.
Critical voices have been raised within the legal literature, saying that the assessment seems discretionary and unpredictable. Considering the economical consequences for the individual human being that might follow the result of the assessment, this is unfortunate. A clarification from the court is therefore desirable, including information regarding within what fields it is correct to find implied guarantees and exactly what it is that sometimes makes the court consider an implied guarantee being a fiction.
Why the construction with implied guarantees are still being used is probably because it’s a desirable complement to the legislation, making it possible to put the cost for the damage on the party according to what seems most fair. If this is the purpose with the implied guarantee, it’s hard to create predictability, since the opportunity for the court to make an assessment depending on what seems most fair in the case then will disappear. If the problem is to be solved through legislation, it would probably be necessary with a general clause, since great flexibility is needed to achieve reasonable results. The absence of a single law regulating guarantees would probably make this more difficult though.
Frequently, it appears that a clearly expressed guarantee is missing. It raises the question if a guarantee nevertheless can exist, if the situation can be interpreted as if there is an implied guarantee? This essay aims at finding and analyzing what characterizes the implied guarantee that can be found in precedents from the courts.
The result consists of four common traits of character that has been frequently recurrent in the cases that has been in trial. The first concerns professionalism, that a buyer must be able to trust a recommendation from someone with special qualifications within the relevant field or who otherwise conducts professional activity. Closely connected to the advantage following the knowledge of a professional, there seems to be a tendency to protect consumers or others in an inferior position, as being the weaker part in negotiations before entering into contract and with limited possibilities to control the object of the contract. Another strong argument that frequently appears is that the seller was aware of what the buyer wanted, but still did not perform according to the emphasized requirements, or entered into the contract though must have suspected that the object of contract did not fulfill the requirements of the buyer. Finally, it seems that it also can be taken into consideration if the data was of great importance for the contract, referring primarily to differences compared to fundamental characteristics that must have been presumed by both parties.
It also seems to be of importance that a professional trader and a consumer don’t have the same potential when it comes to inspecting the object of contract, which makes the court demand more of the professional than the consumer.
Occasionally, the court is skeptic to constructing an implied guarantee. In cases concerning infected food and purchase of animals, the court has clearly positioned itself against implied guarantees. They also seem to doubt the construction concerning guarantees of time. Why this construction sometimes is not appropriate is fairly unclear, maybe an ethical perspective sometimes makes implied guarantees inappropriate.
Critical voices have been raised within the legal literature, saying that the assessment seems discretionary and unpredictable. Considering the economical consequences for the individual human being that might follow the result of the assessment, this is unfortunate. A clarification from the court is therefore desirable, including information regarding within what fields it is correct to find implied guarantees and exactly what it is that sometimes makes the court consider an implied guarantee being a fiction.
Why the construction with implied guarantees are still being used is probably because it’s a desirable complement to the legislation, making it possible to put the cost for the damage on the party according to what seems most fair. If this is the purpose with the implied guarantee, it’s hard to create predictability, since the opportunity for the court to make an assessment depending on what seems most fair in the case then will disappear. If the problem is to be solved through legislation, it would probably be necessary with a general clause, since great flexibility is needed to achieve reasonable results. The absence of a single law regulating guarantees would probably make this more difficult though.
Department/s
Publishing year
2012
Language
Swedish
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- Förmögenhetsrätt
- Avtalsrätt
- Civilrätt
- Garanti
- Fastighetsrätt
- Produktansvar
Supervisor
- Sacharias Votinius