Oskäligt i förhållande till vem? Särskilt om beaktandet av externt intresse inom skälighetsbedömning av avtalsklausuler i offentliga kontrakt på socialrättens område

Sammanfattning: In Sweden, municipalities have ultimate responsibility for ensuring that the individual receives the social support they need. Municipal authorities are therefore obliged by law to provide a range of different types of public ser-vice. As a result of last decades political reforms, welfare politics has been largely influenced by market policy models and private solutions. Munici-palities within the framework of public procurement system, are increas-ingly hiring private law subjects to carry out their tasks. However, public law of procurement regulates only the process of selecting individual care-giver. The contract which municipality subsequently enters with chosen provider of a welfare service is governed by private law rules and princi-ples. It also means that contract adjustments that can become relevant be-cause of changes in social legislation, which stipulate quality requirements for social care, must be permitted by general contract law. A fundamental principle in contract law is that agreements must be kept. 36§ of Swedish Contracts Law, however, offers the parties possibility to adjust the contract clauses if they appear to be unfair due to the changed circumstances. Mu-nicipalities can therefore put forward an argument that changes in social legislation constitutes such circumstances. 36§ Swedish Contract Law to be applicable, it is required that party who wishes contract adjustment con-structs unfairness argument. Thesis aims therefore to highlight the limits of argument which primarily focuses on unfair consequences that municipali-ties continuous contractual obligation towards the private welfare provider despite law changes, entails for third party, namely, the recipient of munic-ipal welfare service. To answer this question, I highlight the special features of municipali-ty contracts entered with private welfare provider. Next, I examine the question through a legal dogmatic method based on the 36§ wording, pre-paratory work, case-law and doctrine. Recent development trends in civil law regarding the principle of the scope of the agreement and interpretation of public contracts are also considered. Thesis concludes that the unfairness assessment according to § 36 Swe-dish Contract Law, primarily considers unfairness that affects the contract parties. However, this does not prevent that in certain specific situations it would be legally possible to take third-party interests into account and, with support of § 36 Swedish Contract law, put forward an argument to adjust a contract clause which has become unfair due to changed circum-stances.