Passivitet i svensk rätt - en avtalsrättslig studie

Sammanfattning: The aim of this thesis is to investigate the grounds on which passivity causes contractual effect in the form of binding agreement or loss of contractual rights, according to Swedish law. The analysis pertains to passivity norms as they are found in the Contracts Act, the Limitations Act and the Commercial Agents Act as well as in the unwritten passivity norms developed in case law. The investigation of passivity as legal act, as dispositive fact, and as interpretation factor, is based on the relevant legal sources such as legislation, precedents, and doctrine. Passivity effects can be substantive and procedural. The procedural effects imply that the burden of evidence is shifted to the passive part and thus implies presumption impact. The substantive effects impact the contract in terms of binding agreement or loss of rights. The substantive effects are the focus of this study. One chapter is devoted particularly to the passivity effects that imply presumption. This is motivated by the seminal importance of NJA 2006 p. 638 which established a passivity norm in relation to the confirmation of contract, with regard to a special regulation in the Commercial Agents Act. According to the current law, passivity entails effects based on different grounds. In terms of legal act, passivity follows the general principles of legal act impacts and can result both in binding and in the loss of right, in accordance to the theory of the declaration of intent and the principle of reliance. Passivity as dispositive fact results in effects both when applied as statutory norm and as unwritten norm. The statutory passivity norms that are discussed imply contractual effect in the form of binding. Through the unwritten passivity norms that have been formed in practice, passivity as dispositive fact can lead to the loss of right to sanction but also to the loss of contractual right. With regard to the loss of a right resulting from a change of contract, passivity is typically given the effect of a legal act. However, an independent passivity norm has been formed in NJA 2018 p. 171, that entails a loss of contractual right for past time due to passivity as a dispositive fact. The loyalty principle appears as a significant in case of assessment of passivity that is not based in statutory regulations. Regarding the assessment of passivity as a legal act the principle of reliance appears as significant instead. The thesis thus concludes that passivity can never be the single decisive factor of legal effects, as its importance is measured against the background of an overall evaluation in each specific case. Such an overall evaluation founded in adequate legal principles and legal norms determines the resulting legal effects of passivity.