I gränslandet mellan avtalstyper - En uppsats om garantiförsäkringar i företagsöverlåtelser

Sammanfattning: Contracts can be sorted into different contract types. The question whether a specific contract belongs to a certain contract type depends on if the contract matches the essential characteristics of the contract type. Two contract types that, at least in some parts, are difficult to distinguish from one another are insurance and guarantees. Insurance companies has increasingly issued different types of guarantees, although they are classified as insurance contracts by the insurance companies. In the same way banks are doing business in a manner that is similar to insurance business by concluding guarantees for consideration. The amount of the consideration is decided based upon statistical calculations of the expected cost of all guarantees in the business. The thesis examines warranty and indemnity insurances. Warranty and indemnity insurances are concluded by one of the parties in a business transfer and an insurance company. In many respects, for example the triangular relationship and the purpose of the contracts, these contracts are similar to guarantees. They are, nevertheless, classified as insurance contracts and concluded by insurance companies. The first question of the thesis addresses which contract type warranty and indemnity insurances belongs to. Contrary to what is distinctive for insurance contracts and guarantees, a warranty and indemnity insurance is an instantaneous contract. This implies that several rules governing insurance contracts and guarantees will not be applicable for a warranty and indemnity insurance. The second question of the thesis addresses the importance of the answer to the first question for determining the content and legal effects of a specific warranty and indemnity insurance. The underlying law to the business transfer consists primarily of the provisions of the Sale of Goods Act, which may therefore be considered to be of importance in determining both the content of a warranty and indemnity insurance and its legal effects. Furthermore, in legal doctrine, the extent to which the principles of contractual interpretation diverge between different types of contracts have been discussed. The conclusion drawn in this thesis is that the contractual interpretation as such does not differ between different types of contracts. However, differences arise between the circumstances that can be considered to be relevant in the context of the contractual interpretation because of the differences in purpose with and party configurations of different contract types. Guidance on the interpretation of a specific warranty and indemnity insurance will need to be obtained from both the legal rules governing guarantees and legal rules governing insurance as well as the Sale of Goods Act. The question regarding which legal rules that are applicable for a warranty and indemnity insurance cannot be given an unambiguous answer. Also in this manner there are legal rules governing insurance contracts, guarantees and the Sale of Goods Act that can be implied. In at least two situations, the rules governing insurance contracts differ from those governing guarantees. First of all, the regulations differ in the case of insurance company’s or guarantor’s bankruptcy and, secondly, the regulations differ as to how short limitation periods the parties can agree upon.