Säljarens utfästelseansvar - En jämförelse mellan 4 kap. 19 § 1 st. jordabalken och 40 § 3 st. köplagen

Sammanfattning: When a contract of sale is concluded, it is important that the parties are aware of what applies in the event of a breach of contract. Unclear legislation can make it difficult for the parties to foresee which liability may arise. For moveable property, the Swedish Sale of Goods Act (Sw. köplagen) contains a number of provisions on what applies in the event of defective goods. A particular difficulty is to distinguish between what constitutes a commitment (Sw. utfästelse) and a particular commitment (Sw. särskild utfästelse). The difficulty arises since a particular commitment, unlike a commitment, entails compensation for indirect losses according to 40 § paragraph 2-3 in the Sale of Goods Act. Due to the lack of precedents from the Swedish Supreme Court, the legal position regarding what constitutes a particular commitment is unclear. Regarding immovable property, the regulation is different. A seller of immovable property is liable for damages for what he “may be deemed to have pledged” (Sw. “får anses ha utfäst”) according to chapter 4 section 19 paragraph 1 in the Swedish Land Code (Sw. jordabalken). For immovable property, there are also precedents from the Supreme Court. In doctrine, a need for uniform legislation regarding movable and immovable property has been ex-pressed. Therefore, the purpose of this essay is to critically compare the seller’s responsibility for what he may be deemed to have pledged according to the Land Code with what the seller has particularly pledged (Sw. "särskilt har utfäst") according to the Sale of Goods Act. To fulfil the purpose of the essay, the legal dogmatic method will be used. Since the Sale of Goods Act is a result of a Nordic collaboration, a comparative study will also be made between Swedish and Nordic law. From a historical viewpoint, it is clear that the similarities between the regulations in the Sale of Goods Act and the Land Code have been greater previously. In the new Sale of Goods Act, the legislator chose to replace the wording “can be considered assured” (Sw. "kan anses tillförsäkrad"), according to the old Sale of Goods Act, with the wording “has particularly pledged”. The new wording led to a change of the applicable law, but the government bill lacks motivation for why the new wording was introduced. Thus, it is unclear how the provision in the new Sale of Goods Act relates to the old Sale of Goods Act. The biggest difference between the Swedish Land Code’s ”may be deemed to have pledged” and the Sale of Goods Act’s “has particularly pledged” is a seller’s responsibility for core characteristics (Sw. kärnegenskaper). For immovable property, the responsibility for core characteristics has been established through precedents, confirmed through legislative history. For movable property, a gap has been identified according to the old Sale of Goods Act. According to doctrine, the gap is considered removed by the new Sale of Goods Act. However, the legislator’s lack of explanations and rulings on the core characteristics in relation to moveable property means that the legal position can be considered unclear. Comparing Swedish to Nordic Law, it becomes evident that a responsibility for the core characteristics does not exist in other Nordic countries, even though a discussion about core characteristics exists in the Norwegian doctrine. In Norwegian law, a seller’s responsibility for pledges in movable and immovable property is uniform, unlike Swedish law. By clearly linking the provisions to each other, the Norwegian law avoids the problem that has arisen in Swedish law regarding the different responsibilities. In the essay, it is stated that most of the ambiguities could have been avoided if the legislator had commented and motivated the change that was implemented. In conclusion, it is stated that the differences between ”may be deemed to have pledged” and “has particularly pledged” may have a purpose, but whether the purpose is desirable is a completely different question. In my opinion, the arguments for separating the responsibility are not sufficient. Instead, I think we should be inspired by Norway and look at the seller’s responsibility for pledges in the same way for immovable as for movable property, regardless of what the responsibility would entail.