Företagsförvärv – En analys av det köprättsliga felansvaret

Sammanfattning: The starting point for this thesis has been that all shares in a limited liability company are transferred to a buyer. The presentation analyses how the risk of errors in the target company is divided between the buyer and the seller, based on the provisions of the Sale of Goods Act. From being a controversial issue, there is today no doubt that the provisions of the Sale of Goods Act lay the foundation for the assessment of the seller's responsibility for errors. The error assessment according to the Sale of Goods Act can be said to be binary in the sense that either the seller is responsible for an error, or it is not. In the 17th section of the Sale of Goods Act, an error is referred to as a nonconformity with the purchaser's legitimate expectations of the purchase item. However, what constitutes a legitimate expectation of a limited company is not expressed in the provisions of the Sale of Goods Act. From the legal literature, it follows that the assessment is primarily to be made taking into account what kind of expectations a reasonable person of the same kind in a corresponding situation would have. As a purchase item, a limited liability company is complex and of unique character causing difficulties when determining which of the purchaser's expectations to be considered legitimate. Nonetheless, a number of characteristics have been declared in the legal literature to be of such fundamental nature that a purchaser normally can have legitimate expectations of these. However, if the transfer agreement contains an “as fi” clause or similar general reservation, the purchaser's room for legitimate expectations is limited. The seller's responsibility for errors is then only realised if the purchase item is in a considerable inferior condition in relation to what the purchaser with due regard to the price of the purchase item and the circumstances in general reasonably could have foreseen. As a consequence of the distribution of risk, a seller can be said to have certain obligations that he or she must meet to avoid becoming responsible for an error. Among other things, it is in the seller's own interest to inform a purchaser if there are any nonconformities seen to the buyer's legitimate expectations. If the purchase item has been sold “as if” or with a similar general reservation, there is also an explicit duty of disclosure for the seller. The duty of disclosure means that the seller must inform the purchaser of significant circumstances regarding the qualities and use of the purchase item that the seller can presumably have known, and which the purchaser with good reason could expect to have been informed about. In cases where the purchase item is sold without any disclaimer, there is no provision in the Sale of Goods Act that explicitly imposes a general duty of disclosure on the seller. Whether such a duty can be considered to follow indirectly from the Sale of Goods Act or from non-statutory rules is argued. In the legal literature, some authors are of the opinion that there is no independent duty of disclosure, but what the seller has known, or should have known, can be assigned importance in the assessment of the seller's responsibility for errors according to section 17, third paragraph of the Sale of Goods Act. Even if its wording does not support such an interpretation, others, however, argue that a general duty of disclosure follows directly from the provision. In this thesis, the conclusion has been drawn that it is possible to speak of some form of general duty to disclosure, even though the legal position may be considered somewhat ambiguous. In addition to a duty of disclosure, the distribution of risk also entails that the seller is responsible for the accuracy of the information in the transfer agreement and all other information provided by the seller in connection to the acquisition. The seller's liability for provided information has proved to be far-reaching in the sense that it also includes information provided by others, as long as the information is deemed to have been submitted for the seller's account. By leaving an amendment to the purchaser in time and in a clear manner, or by clarifying to the purchaser that the seller cannot take any responsibility for the accuracy of the given information, the seller can usually avoid responsibility for any errors since the information cannot be considered to have had an impact on the purchase. In order for an error to exist according to the Sale of Goods Act, there has to be a causal link between the erroneous and the purchaser's decision to carry out the purchase, or the conditions for the purchase. From both the 17th section third paragraph of the Sale of Goods Act and the 20th section of the Sale of Goods Act it follows that a purchaser's knowledge of a nonconformity excludes liability for the seller. The purchaser’s examination of the target company can therefore have a major impact on the distribution of risk between the parties. There is no statutory obligation for the buyer to examine the target company before the acquisition. Nevertheless, one usually refers to a duty of examination arising from a statute in Section 20, second paragraph, of the Sale of Goods Act. If a purchaser has examined the purchase item before the purchase or, without acceptable reason, failed to comply with the seller's request to examine it, the purchaser may not, according to the provision, claim as error what he or she should have noticed at an examination. In those cases where the purchaser's obligation to examine is realised, the purchaser's responsibility is thus expanded from only covering circumstances that the purchaser can be assumed to have known, to also include circumstances that the purchaser should have noticed during the examination. The final scope of the purchaser's duty to examine, however, depends on the circumstances of each individual case. The duty of examination does not constitute the only factor that can affect the distribution of risk between parties. The optional nature of the Sale of Goods Act means that the parties are free to agree on the applicability of the Sale of Goods Act with the exception of Section 36 of the Swedish Contract Act. The parties therefore have the opportunity to introduce different limitations of liability in the transfer agreement, which is often done in the form of guarantees and disclaimer clauses. If the seller guarantees a certain condition, the starting point is that the seller is responsible for any unconformity. However, in cases where the seller's guarantees are set in relation to the purchaser's duty to examine, the assessment is somewhat complicated. The significance of the seller's guarantees, given on the responsibility of errors, then depends, amongst other factors, on the degree of precision that can be ascribed to the seller's request for examination or guarantee commitment. In the legal literature, it has also been discussed whether a catalogue of guarantees by itself can be ascribed the effect of a disclaimer in all other respects. However, the opinions seem to differ, hence the legal position may be considered ambiguous. Regarding disclaimer clauses and their impact on the distribution of risk between the parties, a distinction between concrete and more generally held disclaimers should be awarded. A precise disclaimer regarding a specific circumstance or certain information should be accepted without major problems. However, case law has shown a more restrictive approach to disclaimer clauses of more general nature, which is also reflected in Section 19 of the Sale of Goods Act. The authors of the legal literature, however, argue that the parties are free to, by the exercise of the freedom of contract, negotiate an exception of Section 19 of the Sale of Goods Act, provided that the waiver can reasonably be accepted taking into account the consequences that an application of the clause entails. However, the thesis has shown that a generally held disclaimer does not have any effect on a specific piece of information given by the seller. In order for a generally held disclaimer to be interpreted restrictively, it therefore seems to no longer be required that the seller act in untruthful manners or that the disclaimer is considered unfair. The conclusive factor for the effect of a disclaimer clause on the distribution of risk between the parties thus seems to be its formulation, as long as the disclaimer clause is not deemed unfair.