Verkan av passivitet vid avtals ingående

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

Sammanfattning: The purpose of this essay is to investigate the possibilities of entering into a binding agreement despite the passivity of one of the parties. The term passivity is used to denote the lack of action when a party, during a process with the apparent aim of entering into an agreement, typically can be expected to act through a declaration of intent, a refusal or a clarification. Before a closer enquiry on the effects of passivity is made, the legal founda¬tion for the following reasoning is presented: the basic model of contract formation in the AvtL and the considerations behind this model. A short presentation of the most commonly used alternative models of contract formation is also made. Next the term passivity is introduced – what is its legal-technical meaning? Passivity is found to be considered an “objective expression” which gets legal effects through purely objective requisites, in contrast with true declarations of intent (which also can be expressed through passivity). A distinction is also made between material and procedural effects of passivity. Material effect means that a binding agreement is considered being in effect due to the purely objective action of the passive party, procedural effect means that the evidential burden is shifted to the passive part, who has to show that no contract has been entered into. The chapter ends with a presentation of the rules on passivity effects that are expressed in different laws. The main part of the essay is commenced with a presentation of the opinions found in legal writing considering a “pure” passivity model. Thereafter the account is extended to more limited situations in which “pure” passivity can have possible effects, and models were passivity can be given effects in combination with other factors such as elicitation of offers, prior actions between the parties, customs and concludent action. Ending the chapter is a presentation of the most relevant judgements from the higher Swedish courts. In the next chapter a special question is considered: what effect does the passivity of a party towards a confirmation of agreement have? First the opinions in legal writing prior to the important judgement in NJA 2006 s. 638, as well as the most relevant prior case law, are examined. Then NJA 2006 s. 638 and the expressed opinions on this case are presented in detail. In the final chapter an attempt is made to, as far as possible, draw conclusions about the current legal situation concerning the effects of passivity. Most importantly it is concluded that no “pure” passivity rule exists in Swedish law, that passivity in combination with the above mentioned additional factors can lead to a binding agreement if the subjective requisites in 6 § (2) AvtL are filled, and that passivity towards a confirmation of agreement normally shifts the evidential burden to the passive party. Finally the rationality of the legal situation as presented is discussed, as well as possible alternative regulations.

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