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- Lundberg, Konrad, 1943-
(författare)
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Avtalets innebörd : Inkorporering - tolkning - utfyllning
- 2019
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- What a contract means with regard to the mutual rights and duties of the parties to that contract, depends on what provisions the contract contains (incorporation), how these provisions should be construed (interpretation) and how issues not addressed in the contract should be governed (supplementation).Statutory provisions regarding incorporation, interpretation and supplementation exist, albeit to a limited extent. The approach of Swedish law to these issues is therefore largely based on the precedents set by the Supreme Court.The signing of the contract, in effect, decides its content. At present, standardized terms and conditions, or to be more exact, terms and conditions that have not been individually negotiated, can be incorporated into a contract in a simplified manner. These simplifications are justified by practical consideration of closing a deal more efficiently, and thereby reducing transaction costs. The incorporation of these terms and conditions therefore largely require only that the other party has been given a realistic opportunity to read them and does not object to them. Unexpected and burdensome terms, however, need to be clarified.Where the wording of the contract is ambiguous, and sometimes, even where the wording is clear from a linguistic perspective, the contract will need to be interpreted when a dispute arises. This interpretation follows a hierarchical order of preference. First, subjective interpretation is applied. If this cannot be done, then objective interpretation is used, and as a last resort, presumptions and the ambiguity rule will be applied.Subjective interpretation is based on the actual intent of the parties upon entering into the contract, either by proof either that they had the same opinion, or that the opinion of first party was clear to the second party, and the second party did not object (the dolus rule). Objective interpretation is based on what can typically be assumed to have been the intent of the parties, given that they are reasonable people. In summary, this can be described as a balancing of arguments that relate to the purely linguistic meaning, the purpose of the contract and the reasonability of the results. Nine times out of ten, the Supreme Court uses this approach to resolve problems in interpretation. In one or two of a hundred cases, objective interpretation results in two opposing interpretations that are both reasonable. In such cases, the contract is interpreted to the detriment of the party that is deemed to be most responsible for the ambiguity.If interpretation fails to reach a convincing result, the issue in dispute is then deemed not to be governed by the contract, and will instead be resolved by supplementation, which is most commonly, the application of dispositive (optional) law.
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| 2. |
- Larsson, Per, 1969-
(författare)
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Skyddet för visselblåsare i arbetslivet : en konstitutionell och arbetsrättslig studie
- 2015
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The purpose of the study is to contribute to the knowledge on the protection of employees who report or disclose wrongdoings at work. To that end, different legal rules are analysed and discussed; the conflict and interaction between constitutional, European and labour law regulation is of particular interest. The more specific research questions are i) how different rules that protect whistleblowers interact with each other, ii) if there are common patterns in the regulation in the different areas of law, iii) how duties to report wrongdoings relate to the protection of reporters and iv) if the current regulation to protect work place whistleblowers is appropriate.One conclusion from the study is that the labour law protection of whistleblowers increasingly stems from constitutional law, including the constitutionally anchored European convention; the current legal development can be described as a constitutionalisation process of labour law. As the importance of constitutional law in labour disputes increases, questions about interpretation, delimitation and application of constitutional law in labour disputes require more theoretical and methodological attention.Another conclusion from the study is that the traditional disparity between the protection in the public and the private sector is decreasing. This is the result of three different interacting developments. Firstly, the legislator has expanded the scope of the protection for the constitutional freedom to provide information for publication (meddelarfrihet) not only to apply in strictly public organisations, but also in municipal corporations and some other organisations of public character. Secondly, the Labour Court has in its case law also protected private sector whistleblowers, particularly when public financing of a private organisation or another important public interest is at stake. Thirdly, the European Court has taken the view that private sector whistleblowers also should be guaranteed freedom of speech protection. The convergence of the degree of protection provided in the public and private sector can be explained by the increased attention to protection of third parties and the public at large from harm resulting from wrongdoings at work, whether in public or private sector.The protection of whistleblowers in Swedish law is overall strong and appropriate. There are nevertheless some weaknesses in the protection. One flaw is that while the employment protection is strong, the labour law protection against retaliation during employment is weaker; even if the principle that the employer organises and leads the work has its limits in the principle of good labour market practice (god sed på arbetsmarknaden), the application of the principle of good labour market practice is limited and it is uncertain under what circumstances non-material damages can be awarded to a whistleblower who has suffered reprisals. Another weakness in the protection of whistleblowers is that there are frail protections against retaliation from co-workers.Legislation and proposals for legislation to protect whistleblowers have increased. There is however a risk that these new initiatives create increased legal ambiguity, notwithstanding the aim to strengthen the protection; a result of these initiatives may therefore unfortunately be that while the protection is getting stronger on paper, the initiatives result in increased legal uncertainty.
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