Friskrivningsklausulers rättsverkan i aktieöverlåtelseavtal

Sammanfattning: This essay examines which possibilities contracting parties in a corporate acquisition have of using disclaimer clauses to regulate responsibilities in regards to the Swedish Sale of Goods Act. Starting point is the criticism directed towards the precedent set in NJA 2016 s. 237 (the Lindorff case) by the Swedish Supreme Court, which disapproved a disclaimer clause despite its similarity to a clause which was approved in NJA 1975 s. 545 (the Vapour barrier). Subsequently, it has been questioned whether the possibility to limit contractual responsibility in accordance with optional law has been compromised. Basic principles of contractual freedom, pacta sunt servanda and rules about responsibility for errors as stated in the Sale of Goods Act expose contracting parties in a corporate acquisition to risk. As the Sale of Goods Act is of optional nature, parties can control the risk exposure through guarantees and disclaimers. The main method for interpreting contracts is through objective interpretation, starting from the common will of the party. If a common will of the party can not be determined and the wording of the contract offers no further guidance, the court can supplement the contract with background law (gap-filling). The analysis concludes that the legal position has not changed with regard to disclaimer clauses. Precedent rather seem to confirm the view that disclaimer clauses of more general nature does not hold up against precise information. It is further concluded that because of how the Sale of Goods Act is constructed, it is only theoretically possible to draw up a contract which is independent from it. A revision to the Sale of Goods Act is suggested to simplify both constitution and interpretation of contracts within corporate acquisition.