Ekvivalensprincipen, The doctrine of equal value
(2007)Department of Law
- Abstract
- The meaning of the doctrine of equal value is that balance must exist between the performances of the contracting parties. The doctrine can be divided into two parts, the original imbalance and imbalance that has arisen. The original imbalance means that the imbalance already existed when the contract was concluded. Instead, imbalance that has arisen means that the imbalance arose after the contract was concluded. This essay only aims at discussing original imbalance. The original imbalance has its origin in both Aristotle's theory and in the Roman law. The original imbalance attached great importance during the Middle Ages within Christianity and Natural law. However, when the liberalism gained followers, the original imbalance had to... (More)
- The meaning of the doctrine of equal value is that balance must exist between the performances of the contracting parties. The doctrine can be divided into two parts, the original imbalance and imbalance that has arisen. The original imbalance means that the imbalance already existed when the contract was concluded. Instead, imbalance that has arisen means that the imbalance arose after the contract was concluded. This essay only aims at discussing original imbalance. The original imbalance has its origin in both Aristotle's theory and in the Roman law. The original imbalance attached great importance during the Middle Ages within Christianity and Natural law. However, when the liberalism gained followers, the original imbalance had to make room to the new way of thinking about the freedom of contracts. The doctrine has, during the last years, increased its importance, mostly because of the establishment of the general clause in 36 § AvtL and the Swedish protection-legislation. There are three paragraphs in the Swedish legislation that render an adjustment based on original imbalance. Those are the general clauses in 33 § and 36 § AvtL and the paragraph of usury in 31 § AvtL. These paragraphs have in common that the original imbalance is only one of many circumstances that can be taken into consideration, when deciding if a contract should be adjusted or not. To illustrate how the sections of law have been put into practice, relevant cases have been discussed in this essay. The doctrine of equal value does not mean that a contract should be adjusted as soon as it becomes imbalanced. At first an imbalance of a certain power must be found and established. Then you have to examine if the contract or negotiation contains an assumption of risk or donative intention from one of the parties. If neither a risk of assumption nor donative intention are to be found, the contract is unreasonable. This, however, doesn't mean that a contract should be adjusted. Swedish courts have taken up a hostile approach to adjustments of contracts based only upon an imbalance. This depends very likely upon the fact that the courts believe that parties of a contract should take care of their own interests. It wouldn't be good neither for the legal rights of the individual nor the contract as a lasting establishment if the legal system revised all contracts that weren't balanced. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1555714
- author
- Andersson, Jessica
- supervisor
- organization
- year
- 2007
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Avtalsrätt
- language
- Swedish
- id
- 1555714
- date added to LUP
- 2010-03-08 15:55:18
- date last changed
- 2010-03-08 15:55:18
@misc{1555714,
abstract = {{The meaning of the doctrine of equal value is that balance must exist between the performances of the contracting parties. The doctrine can be divided into two parts, the original imbalance and imbalance that has arisen. The original imbalance means that the imbalance already existed when the contract was concluded. Instead, imbalance that has arisen means that the imbalance arose after the contract was concluded. This essay only aims at discussing original imbalance. The original imbalance has its origin in both Aristotle's theory and in the Roman law. The original imbalance attached great importance during the Middle Ages within Christianity and Natural law. However, when the liberalism gained followers, the original imbalance had to make room to the new way of thinking about the freedom of contracts. The doctrine has, during the last years, increased its importance, mostly because of the establishment of the general clause in 36 § AvtL and the Swedish protection-legislation. There are three paragraphs in the Swedish legislation that render an adjustment based on original imbalance. Those are the general clauses in 33 § and 36 § AvtL and the paragraph of usury in 31 § AvtL. These paragraphs have in common that the original imbalance is only one of many circumstances that can be taken into consideration, when deciding if a contract should be adjusted or not. To illustrate how the sections of law have been put into practice, relevant cases have been discussed in this essay. The doctrine of equal value does not mean that a contract should be adjusted as soon as it becomes imbalanced. At first an imbalance of a certain power must be found and established. Then you have to examine if the contract or negotiation contains an assumption of risk or donative intention from one of the parties. If neither a risk of assumption nor donative intention are to be found, the contract is unreasonable. This, however, doesn't mean that a contract should be adjusted. Swedish courts have taken up a hostile approach to adjustments of contracts based only upon an imbalance. This depends very likely upon the fact that the courts believe that parties of a contract should take care of their own interests. It wouldn't be good neither for the legal rights of the individual nor the contract as a lasting establishment if the legal system revised all contracts that weren't balanced.}},
author = {{Andersson, Jessica}},
language = {{swe}},
note = {{Student Paper}},
title = {{Ekvivalensprincipen, The doctrine of equal value}},
year = {{2007}},
}