Rådgivaransvaret vid fastighetsöverlåtelser - Särskilt om friskrivningsklausuler vid grov vårdslöshet

Sammanfattning: Errors and deficiencies in real estate can lead to excessive costs for the buyer. Particularly if the buyer is a consumer. The buyer of a property has, among other things, a far-reaching obligation to examine the real estate before buying it. The seller can only be liable for defects that the buyer couldn’t have discovered through a thorough examination of the real estate with regard to the property's condition, the nature of comparable real estates and other circumstances in the agreement, this according to the 4th chapter jordabalken. As a general rule, the buyer can examine the real estate himself, but in most cases the buyer hires a real estate inspector to conduct a thorough examination of the property. Real estate inspectors, but also other advisors and experts like brokers or lawyers are often hired throughout the real estate transaction. These advisors should inform the buyer about known risks and faults of the real estate and advise the buyer and seller how the parties should act to ensure that both the buyer and the seller are fully informed to avoid problems arising. Advisor’s responsibilities are governed by general contract principles. A consequence of this is that the consumer protection is high and that the advisor’s responsibility must be based on an assessment of the advisor’s negligence. Among other things, the advisor must carry out the assignment as carefully as possible and shall inform his client in such a pedagogical manner that the client can understand the information. A basic principle for Swedish contract law is freedom of contracts. This freedom of contract means that the parties control the content of the agreement. In most cases the advisor presents the consumer with standard-form contracts that apply to all the advisor’s assignments and its different contracting parties. This means that the consumer's specific needs are not taken into account when presenting the conditions in the contract. It also means that the contractor, in this case the adviser, wants to limit his liability through disclaimers and exemption clauses. There’s a risk that the disclaimer will present itself unfair later on. An example of such a situation is when the advisor acts particularly blatantly in the performance of his / her task. The courts have in recent years chosen to make an assessment of whether the disclaimer makes the limitation of liability unreasonable in itself after an verall assessment of both the risk distribution in the contract, but also looks to other circumstances. This assessment has made the advisor's strict responsibility less covering, something that’s been both praised and criticized in the doctrine. An assessment based on whether the liability limitation is unreasonable in itself will rarely lead to a disclaimer clause being completely disregarded. Instead the “general clause” in avtalslagen will be used to adjust the exemption clause and therefore also the advisor’s lability.