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Hävning enligt AB 04 och ABT 06

Authors
Publisher
Lunds universitet/Juridiska institutionen
Publication Date
Keywords
  • Ab 04
  • Entreprenadrätt
  • Abt 06
  • Hävning
  • Häva
  • Law And Political Science
Disciplines
  • Law

Abstract

The purpose of this study is to clarify the grounds for termination, and the legal consequences of termination, according to the standard agreement system constituted by AB 04 and ABT 06. The study is based on such theory and method which represents traditional jurisprudence. In Sweden commercial construction contracts are not subject to any specific legislative regulation. For lack of formally applicable legislation the standard agreements has in literature been considered to be of great importance for the contract type in general. The construction contracts law is also characterized by its lack of established practice from general courts, and profound doctrine. Therefore this study seeks its answers also in general principles for the law of contracts, as they are expressed in the Consumer Services Act and the Sale of Goods Act. The study shows that termination is no uniform concept in Swedish law of contracts. However, it is a general principle that all fundamental breaches of contracts are causes for termination. The most significant consequence of termination is that the debtor no longer has the right, or the obligation, to fulfill the contract in natura. Furthermore, any performance of the contract should be reversed. Both AB 04 and ABT 06 contains a list of specific grounds for termination, but has no clause that enables the creditor to terminate in case of fundamental breaches of the contract in general. Some of the stated grounds for termination must not be fundamental breaches of contract, according to the words of the standard agreements. The agreements also state that the contract may only be terminated as regards remaining works. The conclusion of this study is that the grounds for termination in the standard agreements must be interpreted in the light of the general principles of the law of contracts. This means that the lists of grounds for termination in AB 04 and ABT 06 are not complete. However, the right to terminate on the listed grounds could be somewhat restricted in comparison to the general principles for the law of contracts. Regarding the consequences of termination, the conclusion is that the contract in its entirety is still applicable for the performed works after termination. At termination the contractor must be paid for the performed works in proportion to the contracted price for the works in their entirety. The value of the partly completed works for the employer has no importance in this regard. Certain questions about what clauses should be applicable for defects, delays and damages after termination follows the fact that the works may be divided into one terminated part, and one performed part. These matters could be settled either by the general provisions of the 5th chapter, or the special provisions for termination of the 8th chapter of AB 04 and ABT 06. The study concludes that chapter 8 could only be applicable for damages and delays which are adequately caused by the termination itself.

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