Reklamationsplikt utan lagstöd – särskilt vid komplexa immateriella tjänster

Sammanfattning: The thesis seeks to investigate whether there is a general duty to give notice in the event of a breach of contract in situations not covered by a statutory regulation. A particular purpose is to clarify the inner nature of the legal institute of notification when it comes to contracts on complex intangible services, such as legal advice and investigation services. A legal dogmatic method is applied. Supported by case law from the Supreme Court as well as by doctrine, the conclusion is that there is indeed a general duty to give notice in the event of a breach of contract in Swedish law. At the same time, the author identifies certain ambiguities in the scope of this duty. A recent case seems to indicate that the general duty to give notice is limited to breach of contract in the strict sense. Another ambiguity is whether preclusion is the exclusive legal consequence of a failure to notify, or whether less intrusive consequences may follow. For complex intangible services, the investigation indicates that the duty to give notice starts even before actual knowledge of the breach of contract, which is surprising since there is no obligation to investigate the performance of such services in Swedish law. The length of the notification period is estimated to be around six months for advanced complex intangible services, such as legal advice, and about a month or two shorter for somewhat less advanced services, such as investigation of real estate. This is to be seen as the main rule, but a balanced assessment of the circumstances in casu must be made to determine the length of the notification period in the individual case. Finally, a proposal for a clarified and modified legal regulation is presented de lege ferenda, which emphasizes that the duty to give notice applies to all forms of breach of contract and that, as a default rule, preclusion is the legal consequence in case of a failure to notify. A less intrusive alternative rule is suggested for situations where the sanction claimed is damages and the circumstances of the individual case motivate a deviation from the default rule. The proposal also contains a minimum limit of two months for a timely notification when it comes to complex intangible services. This is considered justified by the special characteristics of this type of contracts: the differences in knowledge between clients and contractors, the distinct presence of trust, and the difficulty of establishing a breach of contract caused by the contractor's negligence.