Ansvarsbegränsande friskrivningsklausuler inom kommersiella avtal och konsumentavtal

The position of the consumer in a business agreement has been weakened by the decision of the Swedish Supreme Court, NJA 2017 s. 113. This when a contract clause which limited a commercial seller’s liability was considered reasonable and a part of the contract. It is appealing for a seller to be able to limit its liability in case of a breach of contract. Since the principle of freedom of contract is the root of Swedish law it is possible to negotiate limitations concerning liability and therefore limit an eventual claim to a certain sum. However, the freedom of contract is not unlimited and it is limited by protective legislation, where this thesis focuses on the protection of consumers. The thesis’s first part covers the possibility to limit one’s liability depending on the sort of agreement and counterpart. Thereby revealing that when the Swedish Consumer Protection Act concerning purchase or service is applicable it is not allowed for a commercial seller to limit its liability. However, in commercial contracts and contracts with consumers where the Swedish Consumer Protection Act is not applicable it is allowed to limited one’s liability. The case NJA 2017 s. 113 pertained an inspection of a house which is an intangible service. This means that the Swedish Consumer Protection Act concerning service is not applicable and therefore it is allowed to limit the liability. Certain restrictions on a liability clauses can arise later through a court procedure or arbitration. This thesis addresses in which ways NJA 2017 s. 113 has changed the current possibilities to exclude or adjust a liability clause. The case has been noted since it determines that the possibility for exclusion of a liability clause in case of intentional or gross negligence shall not be considered on its own but as part of the reasonable assessment under the 36 § of the Swedish Contracts Acts. When deciding the contract clause under the reasonable assessment, the Swedish Supreme Court weakened the position of the consumer since the Court choses to interpret EU-directive’s grey list different than the Market Court as well as valuing the purpose of the inspection higher than the circumstances which would lead to exclusion of the liability clause. Consequently, the liability clause continued to be part of the contract. A contract clause must have come to the counterpart’s notice in order for the clause to be part of an agreed document. This principle is not discussed in NJA 2017 s. 113. Possibly this can be interpreted to mean that the principle is no longer vailed but I think this is one step too far since the Swedish Supreme Court has not taken a stand but simple avoided to comment. In conclusion, the Swedish Supreme Court has through its judgement in NJA 2017 s. 113 weakened in such manner that I recommend the legislator to improve the protection of the consumer either by expanding the current Consumer Protection Act concerning services or by an additional Consumer Protection Act.