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- Mossberg, Oskar, 1987-
(författare)
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Avtalets räckvidd I : Om avtals tredjemansverkningar, särskilt vid tredjemansavtal och direktkrav
- 2020
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The idea that a contract should affect other people than the parties has seemingly always been a provocative notion. A contract binds the contracting parties – and only them – together in a legal relationship, and yet according to contemporary law a contract can have various legal effects for third parties, i.e. non-parties. The parties can conclude a contract for the benefit of a third party, and third parties can be affected by the contracts of others pursuant to both statutory law and uncodified general principles of law.The legal theme of contractual third party effects involves both theoretical and practical challenges. This doctoral dissertation addresses a number of these challenges, by examining (mainly) Swedish and Nordic private law sources. The study explores third party contracts and direct claims, as well as the relationship between these two legal figures, by placing them in a historical and theoretical context and by performing a series of contextualizing readings of sources revealing developments in both case law and legal scholarship.The research is based on a legal scientific methodology, enriched by theoretical and methodological imports pillaged from the classical teachings and contemporary scholarship on rhetoric. The result can be characterized as a form of rhetorically infused, topically oriented, hermeneutic study of contemporary legal discourse on third party effects of contract.
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| 2. |
- Samuelsson, Joel, 1973-
(författare)
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Tolkning och utfyllning : Undersökningar kring ett förmögenhetsrättsteoretiskt tema
- 2008
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This is a thesis in contract law concerning the distinction between interpretation of contracts (“tolkning”) and construction of contracts (“utfyllning”) traditionally upheld within Scandinavian doctrine. To some extent, this distinction has always been a source of conceptual confusion, but in late-modern times, it has, in certain respects, become almost unintelligible – owing to the gradual loss of function of the form of rationality that originally sustained it. The distinction is now a mere artefact. In itself, this fact does, of course, not make this particular conceptual contraption exceptional. As they are absorbed into the language of contract law, all successful contract law concepts undergoes a process of reification. In the case of the distinction between interpretation and construction, the result is, however, unusually curious.In its traditional form, the distinction expresses the hope for a law of contract that is organized according to scientific principles. It rests on the assumption that it is desirable and possible, in principle, to separate science from non-science. It presupposes that questions of fact are separable from questions of law, Is from Ought, and the uncovering of the meaning of legal documents from the application of the rules they contain. The distinction promises that it is possible to escape the confines of the law-text, to reach beyond the text and the play of words constituting its interpretation, in order to ground interpretive discourse in factual reality. Yet, the distinction itself is nothing but text, i e, nothing but law.Drawing on the Kantian tradition, specifically on the writings of Wittgenstein, the author subjects this contradictory structure to criticism. The aim of the study is, however, not to once and for all remove the contradiction. On the contrary, the policy advocated is one of acceptance – mediated through historical awareness. By distancing ourselves from the vision of law and science that is immanent in the distinction under scrutiny, we would be able to come to terms with the hermeneutical side of contract interpretation, and with the inscrutability of the subjective dimension of the contract construct. When interpretation is called for, it is due to the very fact that there is no verifiable intention, yet the conclusions of the interpreter are given in the form of reports on what the parties actually intended. This, the author concludes, does not make the interpretation of contracts unscientific, even though we, being Scandinavian private law lawyers, were fostered to think otherwise.
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| 3. |
- Schytzer, Jonatan, 1985-
(författare)
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Fordrans uppkomst inom insolvensrätten
- 2020
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The question of when a claim arises is quintessential in Swedish insolvency law. The claim has to have arisen before a certain critical time point to be included in insolvency proceedings, a composition (in a reorganisation) or a debt relief. The question if the claim has arisen before a critical time point is also used concerning recovery to the insolvency estate, set-off and to determine whether a post-commencement claim exists. The thesis delves into the question of the rise of the claim in Swedish insolvency law. In recent years, there have been numerous cases from the Supreme Court of Sweden concerning the question of the rise of the claim. The Court has, in several of these cases, stated that the question of the rise of the claim mainly depends on the purpose of the specific provision. This way of reasoning is called functionalism in the thesis. Functionalism creates an openness towards arguments and principles which are relevant for the specific provision. Accordingly, principles and arguments of insolvency law become important to determine if a claim has arisen as regards to a provision within insolvency law. However, there are other ways of approaching the issue. For example, the doctrine of conditions and the principle of the substantial ground of the claim have also been used in the case law from the Supreme Court of Sweden. To determine whether a claim has arisen, the doctrine of conditions opens the door for an assessment based on the rules on the formation of contracts, while the principle of the substantial ground mainly relies upon the law of obligations. Insolvency law and the law of obligations are thus intertwined in the question of when a claim has arisen. The different ways of reasoning are studied in detail in the thesis. A comparison is also made between their respective structure, as well as of the different normative assessments they rely on. How the Supreme Court of Sweden superordinated functionalism in NJA 2009 s 291 is also studied. The study of the different ways of reasoning forms the basis for the main part of the thesis and its topic, which is: The rise of the claim as regards to the critical time points within insolvency law.
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