Ansvarsfriskrivning från indirekta skador vid grov vårdslöshet – en studie av säljarens rätt att begränsa skadeståndsansvaret i kommersiell köprätt

Sammanfattning: In this thesis Exclusion clauses concerning negligence – a study of sellers’ legal rights to limit damage liability in commercial contracts the author sets out to answer the question if it’s possible for a commercial seller to exclude it’s liability for consequential loss even in cases of gross negligence. The subject was raised as it’s clear that the actual sales contracts of today’s tendency to diverge from the optional laws are especially great concerning indirect damages. From an economic view such a disclaimer from conse-quential losses serves a purpose in commercial contracts, as it enables busi-nesses to asses the risks involved with a contract to a certain accuracy. Yet most modern legal systems have decided against an unlimited freedom of contract, why the question of the extent of an exclusion clause concerning consequential damages can be given legal effect remains. In order to satisfy the object of this thesis, both the issue of which acts can be concluded as grossly negligent and the possibilities of disclaiming liability from such an act are included in the paper. By intention of conveying the international nature, which is true for many commercial contracts today, the paper will illuminate the concurrent problems of the thesis in Swedish, Norwegian, Finnish and English law. Legislative history and doctrine will normally divide exclusion clauses into limitation of liability and exclusion of liability. Generally greater reasons are given for courts to intervene with exclusions rather then limitations of liabi-lity, as the prior tend to invoke more severe derogations to the buyer’s legal rights. In relation to the Nordic sales laws an absolute exclusion from liabi-lity of consequential damages is considered as a limitation and an exclusion of the buyer’s legal rights, since the relevant laws only requires that indirect losses are indemnified in cases when negligence causes the damages. Taken into consideration with the importance of equal balance between the cont-racting parties the general rule must be that an exclusion clause concerning indirect damages when grossly negligent is prohibited in Swedish, Norwegian and Finnish law. However the courts aversion to intervene in commercial contracts entered into by traders of equal bargaining powers together with the logical and economic benefits that jurisprudence, doctrine and even legislative history argues to be found through commercial parties free risk allocation, it’s safe to draw the conclusion that the general rule is to be considered nothing more then an assumption. It’s not possible to find a general rule similar to the Nordic one concerning exclusion clauses and gross negligence within English law. The later legal system applies a much firmer believe in the freedom of contract and thus in general allow terms that exclude liability for indirect losses even in cases of gross negligence if the wording is nothing short of precise, the contract risks have been properly integrated in the contract and it makes exemption for personal injuries as long as it’s not clearly unfair or unreasonable to do so.