Möjligheten att begränsa entreprenörens felansvar i svenska och norska entreprenadavtal. Särskilt om ansvarsbegränsning vid grov vårdslöshet

Sammanfattning: Construction projects are characterized by being complex projects associated with major financial risks. The lack of legal statutory legislation has resulted in the development of agreed documents for the construction industry: AB 04 in Sweden and NS 8405 in Norway. AB 04 can be considered to be a product of compromises, which is especially noticeable in its terms regarding liability for defects. This master thesis aims at comparing these agreed documents’ terms for liability for defects and the possibilities to limit or exclude this liability. The terms in AB 04 for liability for defects are complicated and include several subjective valuations, making them more difficult to apply than the corresponding terms in NS 8405. In this regard, NS 8405 can be considered more preferable as the terms for liability for defects are clearer. In NS 8405, the liability for defects depends on a claim being made on time, while in AB 04 it is based on the character of and the appearance of the defect. The contractor’s main obligation is a proper execution of certain construction works and a wrongful execution must, as a general rule, be redressed. Carrying the liability for defects is often expensive and hence the parties, especially the constructor, might want to exclude or limit the liability for defects. As a general rule there is freedom of contract, meaning the parties are given a wide flexibility to regulate terms for liability through various conditions and sanctions. The freedom of contract is restricted, however, by the Contract Act section 36 permitting the courts to declare unfair or unreasonable contract terms void. What contract terms that should be considered fair or unfair is to be valued after an overall assessment of all circumstances. Previously, it has been regarded not possible to exclude liability for grossly negligent actions, especially based on moral grounds. The existing perception, however, is that the validity of such exclusion of liability and limitations of liability shall be assessed in accordance with the Contract Act section 36. There is only one example from case law upholding such a limitation of liability of gross negligence of an employee. The upholding was motivated by several certain circumstances and can therefore not form the basis for a general acceptance of limitations of liability for gross negligence. It is difficult to be successful excluding liability for gross negligence, even though it is not theoretically impossible. However, the assessment should be slightly less strict when limiting the liability, as a limitation of liability not completely excludes a party from remedies.