Avbeställning i entreprenad - En undersökning av beställarens avbeställningsrätt enligt AB 04 samt därtill kopplade ersättningsfrågor

Sammanfattning: Commercial construction contracts are not defined in Swedish law. The term can be understood as a contract where the employer agrees to construct the works on the employer’s behalf and the latter retains the right to alter the commitment of the former during the term of the agreement. Due to the lack of legislative regulation, jointly drafted standard agreements are used to a great extent. AB 04 is the most prominent standard agreement of which the others are based. The contract is intended to be used for works where the employer is responsible for the projection and the contractor for the execution (Sw: utförandeentreprenader). In practice it happens that the employer for whatever reason decides to cancel the corporation. If none of the grounds for termination in the eighth chapter of AB 04 are applicable, the question of whether or not the employer is entitled to cancel the works arises. Supposing the employer is entitled to cancel the works, the natural follow-up question concerning the contractor’s right to compensation appears. The objective of this paper is to examine if the employer pursuant to AB 04 is entitled to cancel the works and if so, how is the contractor to be compensated. The paper is based on the legal dogmatic method. Since there is no applicable law on commercial construction contracts, the main focus has been to assess how a Swedish court would interpret the employer’s right to cancel. The method used by the Supreme Court of Sweden in interpreting commercial construction contracts has been to conduct an overall judgement. The court initially examines the relevant provision and if that does not yield any conclusive results proceeds to examine the systematicity of the contract and other provisions as a whole. Guidance is also found in optional law, in particular general principles on the law of contracts and the Swedish Sale of Goods Act, and the findings are then applied with consideration of the unique futures of the commercial construction contracts. Lastly the court undertakes a general assessment of reason. The literature on the field does not in any meaningful way assess the questions relevant to this paper. Literature concerning the sale of goods has been important in assessing whether the right to cancelation pursuant to those contracts can be analogically applied on the AB 04. The study shows that an employer does have the right to cancel the works when AB 04 is applicable to the contract. The right of cancellation is not however based on the standard agreement itself but rather follows from general principles on the law of contracts. The view of some authors that this right can be based on the provisions on retired works in AB 04 does not conform with the method of interpretation of contracts laid down by the Supreme Court. An assessment grounded in the law concerning the sale of goods and general principles on contracts indicates that an employer most likely has such a right. Whether or not a weighing of interest should be conducted is in practice a question of lesser importance. If an employer cancels the contract, the contractor has an obligation to mitigate his damages. In addition, the contractor is entitled to receive compensation for loss of profit. There is debate over which method should be employed when calculating the contractor’s compensation. The method most favoured by judicial authors seems to be the subtraction method.