När det entreprenadrättsliga felavhjälpandet uteblir - särskilt efter NJA 2014 s. 960

Sammanfattning: The purpose of this study is to explain and analyze the consequences of when a defect in the construction is stated and the contractor won’t rectify this. The focus of this essay is upon the agreed document called AB 04. The Supreme Court of Sweden’s ruling in NJA 2014 s. 960 have several interest-ing legal matters when it comes to Swedish construction law. The essential question for this essay is to critically examine whether an employer has the legal opportunity to claim damages of an estimated cost for rectifying the defects and/or claim a deduction of the negotiated price of the contract. The method of interpreting contracts, which through several recent precedents has been established in construction law, is not undisputed. For this reason, some effort will be put into these issues and trying to analyze the above stated ruling’s effects on the business, the society and the application of law in Sweden. In AB 04, the regulation states that the contractor has an obligation to fix all defects that the employer asserts. This duty is still applicable even though the contractor doesn’t agree upon the fact that there is a defect at all or that he is responsible for it. If the contractor won’t rectify the defects, the em-ployer gets the right to fix it himself. The question now arises if, and if yes, when the employer can claim compensation for the estimated costs of fixing the defects. Another question is if the employer can refrain from fixing the defects and instead claim a price reduction. When interpreting contracts of this type, the court puts a great amount of weight to optional law and general principles of law. This applies after not reaching a conclusion considered the mutual intention of the parties’ and an interpretation of the actual wording of the contract. After this, it’s especially KöpL and general law of contracts that are being relevant. The possibility as an employer to claim a price reduction also for substantial defects when the contractor won’t rectify, is not an option according to the majority of the ruling. The denial of this right is based in the fact that the actual rule in AB 04 can’t through an interpretation of the wording and the agreement’s con-text lead to any other conclusion. The right of claiming estimated costs for fixing the defects is not regulated in optional law. However, some authors have in the doctrine of this field stated that there is such a right. The court concludes that since this interpretation is not considered inappropriate for the agreement, it should be applicable for AB 04. The ruling declares a right for the employer to claim an estimated compen-sation for what the defects cost to fix. An important question is also when this right comes into play. It can be questioned however this possibility is in line with the preparatory work and the purpose of AB 04 but also if it’s suitable for these kind of agreements. The balance between the parties’ rights and duties and the fact that major defects might not be fixed in the construc-tion can be valid and relevant arguments in this.