Ansvarsfördelningen vid faktiska fel i fastighet: En kritisk studie av gällande rätt och frågan om behovet av en mer långtgående upplysningsplikt för säljaren

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

Sammanfattning: The purchase of property is a special acquisition in the sense that the quality, shape and condition of the property in general vary considerably from case to case. This may be due to many different factors, for example, where the property is located, to which purpose the property has previously been used for, how old it is, who has built its structure or what future plans exist for the property's surroundings. All of these factors can have a negative impact on the property. As a result, the application of law is more complicated and thus less predictable than other types of contract agreements. The problems that can arise when purchasing a property is that the property's negative conditions have not been discovered before the purchase by the buyer, which can lead to a dispute several years after the conclusion of the agreement. This thesis focuses on the property's so-called actual faults that the buyer usually wants to make the seller responsible for. The seller primarily has a strict responsibility for deviations from qualities in the property that was promised in the contract, but may also have a responsibility for such that deviates from a so-called – abstract – normal standard that the buyer has the right to expect that the property had before the acquisition. The problem for the buyer in these situations is that certain evidence problems can arise even when determining whether the property has a so-called standard deviation. In terms of defects that deviate from normal standard, the buyer is also meant to have a duty to investigate. In order for a defect to be made valid in these cases, it also presupposes that a court estimates that the buyer should not have discovered the abstract deviation even through a careful examination before the purchase. The scope of the buyer's investigation duty is tested on pure objective grounds based on an objective measure, the knowledgeable layman. This knowledgeable layman is expected to have a broad knowledge. The buyer's investigation duty has therefore become strict. Simultaneously, this is justified in many cases since the buyer is the one with the greatest interest in protecting himself from buying an affected property by significant deficiencies. However, if a thorough investigation has been carried out, it is not guaranteed that the buyer will find all the deviations. In those cases, the buyer has neglected his duty to investigate. On the other hand, if the seller knew about the existence of the fault before the purchase, it has sometimes been deemed to be due to the seller to observe loyalty and hence, an obligation to inform the buyer before the assignment. According to case law, the seller's concealment must have been reprehensible in these cases for him to have this duty. This is the case if the seller must, at least, have realized that the buyer was unaware about the fault and that its discovery was important for the buyer's choice of entering into the agreement. One can say that both the buyer's investigation duty and the seller's duty of disclosure constitute an attempt to distribute the responsibility of fault on fair grounds. One of the main purposes of this thesis is to consider that if the distribution of risk between the parties can be optimized in order to better prevent disputes and unacceptable contract results.

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