Waivers i den kommersiella avtalsrätten : Eftergifter och reklamation i svensk och amerikansk rätt

Sammanfattning: In Sweden, the concept of waivers in conjunction with notification of breach of contract is not regulated by the law. Instead, the Swedish High Court has devel-oped non-statuary principles regarding waivers and notification of breach in the past years. A party affected by a breach of contract may waive their contractual rights, or the right to assert penalties for breach of contract, either by approving the non-performance in whole or partially, or by refraining from enforcing some or all of the penalties associated to the breach. A waiver may be established expressly or through passivity. While waivers are not regulated by Swedish law the concept of waivers and notice of breach has long been regulated by American law through the Uniform Commercial Code (UCC) in general, UCC § 2-209 es-pecially, and American case law (common law). The codification of a legal area, such as regulations of waivers, is uncommon in American law and yet the UCC regulates fundamental parts of American contract law. The purpose of this thesis is to analyze waivers in conjunction with notice of breach in Swedish commercial contracts through elements of comparison with American law to further the discussion de lege ferenda. The ratio legis behind notification of a breach of contract is to inform the counterparty of the breach and inducing reasonable expectations that no waiver has been constituted. The notification needs to be made within a reasonable amount of time, and in Swedish precedent, disloyal actions can extend the acceptable time of notification. Moreover, The Swedish High Court has developed the concept of waivers based on principles of loyalty and passivity. In American law another element is added to distinguish if the non-breaching party has waived their rights: he or she must have acted actively against his or her contracted rights in a way that may be proved by “undisputed acts or language so inconsistent with [the party’s] purpose to stand upon his [or her] rights as to leave no opportunity for a reasonable inference to the contrary”. The standard for waivers is higher in American Law than in Swedish law and favors the written contract over inconsistent legal acts, or duties to act. There are primarily two reasons as to why an international outlook to the American legal system might help the Swedish legal system handle the concept of waivers and non-statuary notice of breach. First, it might help by raising the standard on when waivers are found to have been established in contractu, and furthermore it might create foreseeability for commercial parties over equity in individual cases.