Ansvarsgenombrott - ett existerande institut i svensk rätt?

Sammanfattning: Piercing the corporate veil, i.e. holding the shareholders of a corporation liable for the corporation’s obligations, in spite of the shareholders’ limited liability, has for a long time been a controversial subject among Swedish legal scientists. The attitude towards piercing the veil has varied. While some have held that there are examples of veil piercing in case law from the Swedish Supreme Court, and that it is possible, by analysing this case law, to draw conclusions regarding the more detailed shape of the rule, others have completely denied the existence of such a rule, or at least held that it is impossible to draw any firm conclusions about the design of such a rule. The purpose of this study is to examine whether the case law from the Su-preme Court often cited in support of the existence of a Swedish rule on piercing the veil (NJA 1935 s. 81, 1942 s. 473, 1947 s. 647 and 1975 s. 45) can be given another explanation. The results of the study can be summarized as follows. There is a princi-ple to the effect that a person running a business on his own behalf will be held responsible for the business’ contractual obligations if the circum-stances were such that the other party intended to enter into a contract with the person carrying out the business. It does not matter whether the person running the business is also the one concluding the contract or the contract is concluded by an agent or in whose name the agreement is formally con-cluded. This principle was used in NJA 1935 s. 81 and 1975 s. 45 and used to identify the "real” construction employer in NJA 1942 s. 473. Before SkL entered into force an employer’s vicarious liability did not cover non-contractal damages caused by all emplyees, but only damages caused by what could be called an independent operational management. In NJA 1947 s. 647 the company was held to constitute such an independent operational management in relation to the shareholders. In NJA 1942 s. 473 liability was imposed on a member of a cooperative (in Swedish ekonomisk förening) under the principle that the owner of real estate property having excavation carried out on the property is liable for damages caused by a negligent independent contractor. These cases therefore provide no support to the theory that Swedish law has accepted a principle of piercing the corporate veil. What has occurred is, however, that another principle, making one legal entity responsible for the obligations of another, under certain circumstances also has been applied in the relationship between a legal person and its shareholders or members. As regards non-contractual obligations, the employer’s responsibility for dam-ages caused by employees has undergone such profound changes that NJA 1947 s. 647 today has no precedential value. As regards contractual obliga-tions, however, there is the above mentioned principle regarding liability for a business’ obligations. However, there is nothing in existing case law to suggest that the principle could be applied in the relationship between a cor-poration and its shareholders, unless there is a contractual relationship estab-lished, under which the company operates the business on behalf of the shareholders.