En undersökning av skadebegränsningspliktens utvidgning genom lojalitetsplikten inom entreprenader

Sammanfattning: Historically, construction contract law has been litigated through arbitration, and it is excluded from the scope of the Sale of Goods Act. For a long period of time, construction contact law has nearly been disconnected from general contract law. However, the proportion of litigations raised in general court and subsequently reaching a judicial decision in the supreme court, has increased in recent decades. The supreme court has, inter alia, determined that the obligation to mitigate your losses constitutes a general principle of contract law. Furthermore, the supreme court has ruled that the obligation to mitigate also applies to construction contract law. In addition, the supreme court has stated that a construction contract is distinguished by the fact that it usually involves extensive, complicated and long-term work with several involved parties. The purpose of this thesis is to examine the hypothesis that the duty of good faith can impose and extend the obligation to mitigate your losses on a sub- contractor. In order to fulfill this purpose, a question statement is posed that aims to answer whether a specially adapted rule, for AB 04 in particular, can impose on a sub-contractor the obligation to mitigate your losses even though the sub-contractor neither directly suffers damage, nor is in a contractual relationship with the tortfeasor. The question at issue is answered by applying a legal dogmatic method regarding the obligation to mitigate your losses and the construction contract law. Regarding the duty of good faith, a conceptual analytical method is also applied. In a construction contract, actors cannot be indifferent to each other. Sub- contractors are obliged to cooperate with other actors within the construction contract. Despite the absence of an agreement sub-contractors work under contract-like conditions with other actors who are engaged in the construction. The duty of good faith is expressed in the preamble to AB 04, as well as the commentary to chapter 4 article 3. There are divided opinions in the doctrine about what meaning the duty of good faith should be given when applying and interpreting provisions in AB 04. In the years of 2017 and 2018, the supreme court decided several cases, where the court explicitly referred to a duty of good faith between the parties. Through the precedent of the case “Omsättningsmålet” NJA 2021 s. 943, the supreme court may have recognized the duty of good faith as a principle of law. It is established that the obligation to mitigate your losses constitutes a general principle of law which is based on loyalty. The obligation to mitigate your losses is expressed in section 70 of the Sale of Goods Act, and can be described as an obligation that places special demands on the injured party. However, the limitations of the obligation to mitigate your losses in each case are difficult to ascertain. In other contractual legislation, there is support for the fact that measures taken by third parties also can be credited to the injured party. As a result of the gaps that the Swedish legislative technique gives rise to, the application of principles becomes important when interpreting and complementing legislation and agreements. The duty of good faith does not need to be fully clarified to answer the question of this thesis. It is reasonable that the duty of good faith is included in the system of thought that characterizes the construction contract law. That is, the maintenance of a reasonable balance between rights and obligations aimed at an economically optimal distribution of risk between the parties. Neglecting the obligation to mitigate your losses or failing to observe the duty of good faith would have direct negative consequences for the client, with whom the sub-contractor is in a contractual relationship. This is found to be counterproductive for the purposes that the construction contract law as well as general contract law aim to maintain. The cases “De ingjutna rören” NJA 2018 s. 653 and “Omsättningsmålet” NJA 2021 s. 943 set the precedent that a sub-contractor can be obligated to take damage mitigation measures under the premise that the sub-contractor is either the party that can take a measure at the lowest cost, or with the least effort. A party can be imposed obligations to satisfy the other party ́s interests even though it involves sacrifices for its own part. The essay concludes that under certain circumstances, a sub-contractor can be imposed an obligation to mitigate losses, even though the sub-contractor is not directly affected by the damage or in an agreement with the tortfeasor.