AB 04 kap. 5 § 5 och processuella bördor: Den processrättsliga innebörden av entreprenörens garantiansvar i utförandeentreprenad
Sammanfattning: There is no legislation regulating B2B-construction contracts in Sweden. Such contracts are regulated by standard agreements, called General Regulations. The latest version of General Regulations for construction contracts is named AB 04. Under the provision in AB 04 chapter 5 § 5 the contractor is responsible for errors appearing during the warranty period. The purpose of this thesis is to examine whether the provision in chapter 5 § 5 regulates the placement of procedural burdens between the parties. The provision is followed by the following comment. “If the contractor is of the opinion that it is not responsible for the alleged error the contractor has to prove that the construction is performed in accordance with the contract or that the alleged error on probable grounds is due to incorrect planning by the buyer, mismanagement, misuse or anything else attributable to the buyer.” The provision in chapter 5 § 5 and the comment causes problems as for the interpretation and application. According to recent case law from the Swedish Supreme Court, the Swedish Sale of Goods Act and general principles of contract law play a certain role in interpretation of construction contracts. Under the Sale of Goods Act the seller bears the burden of proving discharge from liability. In legal literature this is described as being a “reversed burden of proof” due to a presumption. If the buyer succeeds in proving the existence of an error, this will be presumed to have existed at the time of the risk transfer. The difference between the legal concept “error” in AB 04 and the corresponding legal concept in the Sale of Goods Act provides that a presumption like the one that reverses the burden of proof is not applicable to the current provision in AB 04. Under general principles in Swedish procedural law, the burden of proof can be placed on one or the other party based on whether facts establish liability or discharge from liability. In the thesis, it is proposed that the burden of proof for the occurrence of an alleged error is placed on the buyer during the warranty period. The term “prove” in the comment to chapter 5 § 5 is not to be interpreted as a rule of evidentiary requirement, meaning that the burden of proving that the construction is performed in accordance with the contract is placed on the contractor. The contractor bears the burden of proving circumstances discharging it from liability. In order to not be held liable, the contractor must refer to and prove that any error is caused by incorrect planning by the buyer, mismanagement, misuse or anything else attributable to the buyer. The contractor can also refute that the contract is not performed in accordance with the contact. However, from a procedural perspective, this does not imply any new facts. The buyer bears the burden of proving the existence of alleged error, i.e. that the construction is not performed in accordance with the contract. This interpretation of the provision in chap. 5 § 5 is neither obvious nor is it unproblematic. The validity of agreements on the burden of proof is also discussed in the thesis. In Swedish procedural law, procedural agreements are invalid without legal support. There is no legal support for agreements on the burden of proof. However, agreements on the burden of proof are to be considered as civil law agreements and thus valid. This is especially true in cases such as the present, where the agreement does not connect to any civil law rule.
HÄR KAN DU HÄMTA UPPSATSEN I FULLTEXT. (följ länken till nästa sida)