Skälig tid - En studie av den kontraktuella reklamationsfristen

Sammanfattning: The obligation for a contracting party to notify the counterparty of any dissatisfaction with the contractual relationship or the counterparty’s performance has for long been a part of Swedish law. The obligation is an expression of the parties’ duty of loyalty and establishes a general contractual obligation to give notice. An obligation that has been the focus of several of the Swedish Supreme Court’s decisions recent years. By the Supreme Court’s decisions it is clear that the obligation exists and has a wide application. The meaning of the obligation such as when the dissatisfied party is obliged to give notice has not been clarified. This thesis aims to investigate and clarify within what time span the dissatisfied party should give notice in order to avoid losing the opportunity to make the claim. The contractual party is obliged to leave notice within reasonable time. The legal doctrine, legislative work and court practice has all found that reasonable time is a flexible time span. The time span varies depending on the circumstances of the individual case. This thesis aims to clarify which circumstances that affect the assessment. It also examines selected standard agreements in order to understand what the market participants considers to be a reasonable time. This thesis clarifies the circumstances and factors that influence the assessment of reasonable time. The assessment should balance the parties’ underlying interests; the right to establish themselves in the belief that the opposing party is satisfied with the situation as long as they not give notice and the right to investigate the performance and gain an overview of the consequences ofthe breach of contract. In addition, to the parties’ underlying interests, several factors such as the position of the parties and the parties’ knowledge, the nature and price of the contracted goods, the relationship of the parties as the parties’ loyalty obligation primarily affects the assessment. The period, reasonable time, begins when it appears likely for the affected party that there is a breach of contract and that there is a suspicion that the counterparty bears the responsibility for the breach of contract. Is it possible to give the flexible period reasonable time a clearer meaning in the form of a certain actual time period? I argue that two months could be a reasonable balance of the parties’ interests and provide a starting point for the assessment of reasonable time. Support for the two months is obtained from the legal literature, court-practice and through analogies from legislation. The consumer law legislation states that a notice made within two months of the purchase is considered to have been submitted within in a reasonable time. A period which, based on the practice of the courts, would not be foreign to commercial parties as well and could be accepted in booth Norway and Finland. In addition, the examination of standard agreements indicates that the contractual parties should be particularly vigilant that claims can be made within three months from the expiry of various contractual deadlines. Due to the various factors affecting the deadline, the two months cannot be made generally valid as a fixed deadline but must be adapted to the current situation.