Ändrade förhållanden i internationella avtal - Om force majeure, hardship och möjligheterna att undgå skadeståndsansvar vid fullgörelsehinder
Sammanfattning: International commercial contracts involve a greater risk of change of circumstances affecting the parties’ possibility to perform. This thesis mainly examines how the seller can avoid liability to pay damages because of non-performance, especially in relation to the Covid-19 pandemic. Focus is on domestic rules and the force majeure and hardship excuses. A legal dogmatic method with a comparative perspective is used throughout the thesis. The control liability in article 79 CISG is considered to express the principle of force majeure and at the same time cover hardship situations, which creates confusion. Based on solutions in different domestic legal systems and the UPICC, the salient features of the force majeure and hardship excuses are presented and applied in the context of Covid-19. The hardship principle constitutes a narrower version of force majeure, but with more flexible legal effects. The thesis demonstrates that primarily force majeure, but also hardship to a certain extent, constitute a general contract principle. International commercial contracts often contain force majeure or hardship clauses to manage change of circumstances. Those clauses should be construed narrowly. If a dispute arises, rules from the applicable law, commercial trade and general contract principles are deciding factors for the courts when interpreting or supplementing the contract. These factors also provide guidance for the parties when designing clauses and points at the issues they must address. For the clauses to be effective, this thesis suggest that parties must specify them in certain aspects. The thesis conclude that the parties should not rely on legislation to avoid liability to pay damages. The general contract principles can only be applied to a limited extent, although the salient features of force majeure should be met in relation to the pandemic. Instead, the best option for the parties is to address the issue initially, through well-drafted and well-balanced contractual clauses.
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