Civilprocessuella säkerhetsåtgärder i entreprenadtvister - En analys av civilprocessuella säkerhetsåtgärder som ett medel för att säkerställa entreprenadens framdrift

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: There is a risk that a contractor discontinues or plans to discontinue the work during construction. Potential court proceedings regarding the performance of the construction contract could be time-consuming and delay the whole project. Therefore, it is in the customer’s interest that the contractor, by a security measure (preliminary injunction), can be required to continue the contract work or prohibited from discontinuing the work pending the court’s judgment. The purpose of this thesis is to clarify the possibility of applying chapter 15, section 3 of the Swedish Code of Judicial Procedure in order to obtain such security measures. According to the above-mentioned provision, a security measure must be suitable. In NJA 2018 s. 189, the Supreme Court of Sweden specified the meaning of the suitability requirement. The Supreme Court stated that suitability requires that the measure does not conflict with the prohibition against premature execution of a sentence. The security measure shall not replace the judgment. Forcing a contractor to continue the contract work conflicts with the above-mentioned prohibition. However, according to the Supreme Court, it is possible to make an exception to this prohibition under very special circumstances. Exceptions can, for example, be made when the applicant’s alleged right only can be exercised within a relatively short period, when the claim concerns continuous performances or when the claim concerns a necessity of the applicant’s life. My conclusion is that several cases could fall within the scope of either the explicit exceptions or related cases. Maybe a contractor could be required to continue the work in order to complete the construction of a stadium that is intended to be used during a certain championship. A delay would mean that the project lost its purpose. The exception for necessities of life could be applied in several cases, especially those which concern an individual’s access to water, electricity, or heat. In those situations, the adverse consequences of delayed completion go beyond purely financial damage. Even though exceptions to the prohibition against premature execution clearly could be possible in different situations, the degree of uncertainty is high for a number of reasons. Firstly, the Supreme Court’s general statement on ”very special circumstances” is very restrictive. Secondly, the decision in NJA 2018 s. 189 lacks, to a large extent, reasoning. Thirdly, a security measure’s suitability depends not only on the existence of ”very special circumstances”, but also on the proportionality and the precision of the security measure.

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