Friskrivningsklausuler i kommersiella avtal - Hur begränsas friskrivningar genom avtalstolkning och 36 § AvtL

Sammanfattning: The principle of freedom of contract is a fundamental principle in commercial contract law in Sweden. Freedom of contract means that the parties themselves are considered to be able to dispose of the content and shape of the agreement. This principle enables a redistribution of risk in relation to what would have applied under optional law. It is common for both standardized agreements and individually developed agreements to include disclaimer clauses in the content of the agreement. These disclaimer clauses are often intended to redistribute the risk. Lundmark believes that disclaimer clauses are an important instrument for redistribution of risk in commercial relationships, and that the function and meaning of disclaimer clauses is to facilitate and streamline transactions of goods and services. Freedom of contract is not a principle without restrictions, the need to control disclaimer clauses has gradually emerged in an attempt to counteract abuse of the freedom of contract. The methods that today have a controlling function of disclaimer clauses are not methods that are only applied when controlling disclaimer clauses, they are also applicable when controlling contractual terms in general. The methods that are available to the court when controlling disclaimer clauses are interpretation of a contract and section 36 of the Contracts Act, both of which are based on overall assessments of the individual case. Due to a narrow selection of case law in commercial contract law, the legal situation is not clear regarding how disclaimer clauses are limited in commercial agreements, so it is not possible to give a general answer for how disclaimer clauses are limited as situations often look very different.