Sandbagging i svenska transaktionsavtal
Sammanfattning: Normally parties in Swedish transaction agreements agree that the buyer can´t invoke warranties if the buyer knew about warranted defects before closing (anti-sandbagging). In US it´s more common that the warranties apply regardless of buyers knowledge (sandbagging). The legal effect of agreeing on sandbagging in Sweden is unclear today. My purpose has therefore been to investigate the legal effect of sandbagging in Sweden to find out when it can be a good solution and how sandbagging can be negotiated into the agreement. I´ve done this through an investigation of the legal frames for sandbagging in US, in Sweden and a comparison of the two orders. I´ve found that the legal conditions for sandbagging are essentially the same in US and Sweden even if some parts developed in different directions. I´ve found that Swedish parties can agree of sandbagging within the freedom of contract and that sandbagging normally would be accepted within this limit. I´ve found sandbagging buyer friendly because it makes it easier for the buyer to trust the warranties and it can be a big risk for the seller because it opens for the buyer to sue the seller for more defects after closing. If the buyer can meet the risk at a reasonable price, I found sandbagging better for both parties because it´s more predictable and probably cheaper than anti-sandbagging. I´ve left some suggestions how the buyer can argue for sandbagging by reducing sellers´ risk: the buyer can (1) offer a better price (2) offer sandbagging in relation to certain warranties and anti-sandbagging to others, (3) offer one or more warranty restrictions (as maximum, threshold, escrow, or limitation period) or (4) [the best solution according to me] offer a buyer warranty. If the seller doesn’t want to accept sandbagging the buyer can propose an exhaustive disclosure letter. If the seller still doesn’t want to meet, the buyer can argue for a solution as close to sandbagging as possible: a narrow material- and knowledge definition and a fair disclosure.
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