Befrielsegrunden force majeure i den kommersiella avtalsrätten – I teori, praktik och i ljuset av samtida rättsutveckling

Sammanfattning: In recent years, numerous unexpected events and phenomena have emerged, with the covid 19-pandemic serving as a prominent example. This unforeseen occurrence abruptly paralyzed society in many ways, presenting significant challenges. Unanticipated events, such as the pandemic, also have pro- found implications for commercial contract law, often invoking the exemption clause of force majeure. This paper aims to enhance the understanding of the force majeure exemption in commercial contract law by examining both theoretical and practical aspects, considering the absence of a legal definition and guiding case law. Additionally, the subordinate purpose is to explore whether notions of loyalty and “relational contracting” are reflected in the application of force majeure in legal practice. Force majeure serves as a provision to release a party from liability in situations where contract fulfillment is hindered due to extraordinary events. If the events are so pervasive that performance becomes nearly impossible, a party is typically released from its performance obligations. Generally, commercial contracts include force majeure clauses that consists of four cumulative requirements that must be met for the exemption to have effect. The importance of a clearly defined force majeure clause is emphasized, along with the significance of contractual interpretation, as these clauses function as disclaimer clauses and should generally be interpreted restrictively. Further- more, there seems to be a relatively similar regulation in the context of Swe- dish standard contract law, with some variations in areas such as the obligation to notify, the legal consequences triggered by force majeure, and the specific grounds for exemption. Practicing lawyers within commercial contract law, that are interviewed in the study, collectively agree that force majeure was previously treated as a boilerplate clause, often incorporated into contracts without careful consideration. However, they observe that the regulation of force majeure was rigorously tested during the pandemic, posing numerous questions for practicing lawyers. These questions revolved mainly around the wording of the clauses, as well as what happens in cases where a clause is either absent or unsatisfactory. Regarding the secondary purpose of the essay, it is concluded that loyality and "relational contracting" seems to be rather significant factors in handling force majeure issues in legal practice, particularly during the pandemic. Instances of contentious legal disputes arising from force majeure appear to be relatively infrequent. Despite the absence of guiding precedents and limited case law, the interviews reveal somewhat of a prevailing sentiment among lawyers to approach disputes arising from force majeure with loyalty and a collaborative mindset, aiming mutually beneficial resolutions when a force majeure situation affects the contractual relationship.