Underlåtenhet - objektiva ansvarsförutsättningar i svensk skadeståndsrätt
Sammanfattning: The general purpose of this research paper is to identify, systematise and problematise the objective criteria for liability in relation to omissions in Swedish tort law. In addition, the paper aims at constructing a theoretical framework around these criteria, with a further intention to analyse the legal-linguistic aspects of the issue. Hence, the paper is based on question formulations regarding the distinction between the notion of act as opposed to omission, the legal function of the general liability restriction in relation to such omissions, and the contents and delimitations of the conditions that give rise to a “duty to act” according to Swedish tort law. In the introductory excursus, the distinction between act and omission is presented as a linguistic complex of problems with potential implications for the forthcoming liability issues. The analysis proves that the distinction is of great significance in tort law. In legal doctrine, this issue has been discussed on a particulate as opposed to structural level. I present two factors of significance for the issue of distinction, although the analysis proves that each model of explanation carries inherent weaknesses. This complex of problems is undeveloped in doctrine and court practice. Hence, no clear conclusions can be drawn from the study in this respect. The analysis proves that the general liability restriction establishes the fundamental legal principle that causal omissions, as a main rule, do not generate any liability to pay damages, regardless of the intention and risk realization of the tortfeasor. In my view, the fundamental distinction between objective and subjective liability criteria in tort law should be upheld with respect to omissions. In summary, Swedish tort law acknowledges legal duties to act based on a statute, a contractual obligation, a factual connection to a source of danger, an earlier risk-generating act or the fact that an omission is unlawful. The analysis proves that these duties typically have been delimitated by means of two methods in doctrine and court practice. The first method concerns the scope of the duty. This issue of interpretation is dealt with by applying general or contractual legal principles. The second method concerns the protected purposes of the duty. This issue is dealt with by applying the doctrine of protected interests and principles regarding extension of a duty to a third party. Moreover, the analysis identifies certain difficulties in assessment that typically arise when dealing with duties based solely on factual circumstances. Since the Swedish Supreme Court has, in a number of cases involving such duties, allowed for the traditional negligence criteria to distinctively influence the objective assessment of the duty, a clear tendency to “shorten” the liability test in relation to such omissions can be noted in Swedish tort law. In conclusion, the analysis unequivocally shows that an omission is a transboundary as well as multifaceted concept of responsibility, since the assessment of its merits in a tort law context often requires consideration of non-tort issues. In particular, the analysis reveals a complex relationship between tort law and criminal law in the legal field of omissions.
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