Riskfördelning och försäkringsplikt enligt ABT 06

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

Sammanfattning: In Sweden, the commercial contracting relationship is dominated by a number of standard-form contracts. For turnkey contracts, ABT 06 is usually applied. The standard-form contracts regulate, inter alia, the share of responsibilities that shall apply to a contract as well as an obligation for the contractor to keep the contract insured during a certain period of time (the compulsory insurance). The purpose of this essay is to analyse how the share of responsibilities, according to ABT 06, is affected by the compulsory insurance. The regulation regarding the compulsory insurance in ABT 06 states that a contractor must keep two types of insurances intended for the contract during a certain period, i.e. an all-risk insurance (Sv. allriskförsäkring) and a liability insurance. The extent to which the insurances shall apply in order to fulfil the requirements as set out by the compulsory insurance is specified by an attachment to AMA AF which is defined as the minimum requirements (Sv. minimiomfattningen). ABT 06 and the minimum requirements respectively states that a company which initiates a contract (hereby defined as an employer) must be co-insured if the employer also is the developer of the contract. As co insured, the employer receives an independent right to claim the insurance without the contractor’s participation. If the contractor does not comply with requirements of the compulsory insurance, the contractor bears the risk in certain cases, e.g. the contractor may be liable to pay compensation for damage to the contract to the same extent that the insurance would have covered if it would have been valid. If the excess is set at a level that exceeds what is stated in the construction contract, the contractor is usually liable for the difference between the increased, and the agreed, excess. During the contract period, the contractor may be liable for damage to an undelivered part of the contract. The liability is usually referred to as object responsibility (Sv. objektsansvaret eller fareansvaret). The object responsibility implies that the contractor, in general, is responsible for damage to the contract during the contract period. However, there are a few exceptions whereby the employer is responsible for the damage occurred e.g. when the damage has occurred due to the employer or in the event of force majeure. The object responsibility is, to a large extent, insured through the all-risk insurance. The all-risk insurance applies to unforeseen physical damage or loss of property. Consequently, there is a transfer of liability for damage during the contract period from the contractor to the insurance company. In the doctrine, the contractor’s possibility to be covered by an insurance has been considered to alleviate the effects of the object responsibility. However, it has, through the investigation relating to this thesis, emerged that the object responsibility entails a greater liability than what may be covered by the insurance. Thus, the contractor cannot expect to receive compensation for all damages that have occurred during the contract period. Finally, it has, through the investigation of this thesis, been established that the insurance cover according to ABT 06 is applicable during the contract period regardless of which party that is responsible for the damage occurred. During the contract period, the main purpose of the liability insurance is to ensure that the employer can receive compensation if a liability for damages arises. Upon delivery of the contract, the contract period expires, and the warranty period commences. During the warranty period, the main rule is that the contractor is not responsible for damage and subsequently the risk transfers to the employer. However, the contractor is still responsible for certain defects and consequential damages. The contractor is responsible for, e.g. consequential damage to the contract that appears during the warranty period and which has arisen as a result of a fault for which the contractor is responsible in accordance with ABT 06. The minimum requirements state that the all-risk and the liability insurance respectively shall be valid for a period of two years from the delivery of the contract. According to ABT 06, a warranty period of five years shall apply as a main rule. The discrepancy between the timing in the different regulations shall be covered by the construction contract. If the gap is not regulated by the construction contract there is a risk that the contract may not be covered by the insurance for the determined period. If a gap should arise, such gap is not in compliance with the minimum requirements. In the investigation related to this thesis, it has also emerged that the insurance cover does not affect the share of responsibilities during the warranty period in the same way as during the contract period. During the warranty period, the insurance cover is dependent on the contractor being liable for the damage according to the rules in ABT 06. During the warranty period, the opposite applies from what applies during the contract period when the insurance cover applies regardless of the share of responsibilities in ABT 06. Instead, the insurance cover during the warranty period is dependent on the contractor being liable under ABT 06. When the warranty period has expired, but the liability period is still in force, the contractor’s liability is further limited. The contractor is only responsible for essential defects caused by negligence. The employer also has the burden of proof for both the existence of defects and the circumstances, which the essentiality assessment is based on. An example of negligent action is if the contractor has deviated from the employer’s instructions or if the requirements for professionalism is not met. If the contractor is responsible for the defect, the liability for consequential damage may also be applicable. After the warranty period, neither ABT 06 nor the minimum requirements prescribe any obligation to keep the contract insured.

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