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Oklarhetsregeln – Vad är den, hur används den och bör den tillämpas?

Tjellström, Hannes LU (2017) LAGF03 20172
Department of Law
Faculty of Law
Abstract (Swedish)
In dubio contra stipulatorem is an old rule with roots in the Roman law. It has been the subject of much literature and the authors do not always agree with one another. Quite the contrary, the authors tend to disagree fairly frequently on the matter. The common interpretation, however, seems to that it, at all, the rule should apply it should apply when there is no other data of interpretation available to give a satisfactory result. In dubio contra stipulatorem indicates which party’s interpretation should be given priority over the other. Seldom do the courts declare if they have actually used to rule. This has led to some claims that the court used a model based on culpa and not the contra stipulatorem. This, however, is not true, as... (More)
In dubio contra stipulatorem is an old rule with roots in the Roman law. It has been the subject of much literature and the authors do not always agree with one another. Quite the contrary, the authors tend to disagree fairly frequently on the matter. The common interpretation, however, seems to that it, at all, the rule should apply it should apply when there is no other data of interpretation available to give a satisfactory result. In dubio contra stipulatorem indicates which party’s interpretation should be given priority over the other. Seldom do the courts declare if they have actually used to rule. This has led to some claims that the court used a model based on culpa and not the contra stipulatorem. This, however, is not true, as is shown by selected legal cases. Högsta Domstolen has stated, as late as in 2001, that before falling back on more general rules of interpretation, such as the contra stipulatorem, one should have taken into account a number of other mechanisms of interpretation.
There may be reasons not to use the contra stipulatorem, but it is comfortable to use it when all other options seems to have failed. It is comfortable because it constitutes a form of hidden control by the courts where the court doesn’t really have to declare how and why it has chosen ti interpret a clause in a certain way. Unlike the open control in the 36 § avtalslagen. (Less)
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author
Tjellström, Hannes LU
supervisor
organization
course
LAGF03 20172
year
type
M2 - Bachelor Degree
subject
keywords
oklarhetsregeln
language
Swedish
id
8933811
date added to LUP
2018-03-20 08:52:01
date last changed
2018-03-20 08:52:01
@misc{8933811,
  abstract     = {In dubio contra stipulatorem is an old rule with roots in the Roman law. It has been the subject of much literature and the authors do not always agree with one another. Quite the contrary, the authors tend to disagree fairly frequently on the matter. The common interpretation, however, seems to that it, at all, the rule should apply it should apply when there is no other data of interpretation available to give a satisfactory result. In dubio contra stipulatorem indicates which party’s interpretation should be given priority over the other. Seldom do the courts declare if they have actually used to rule. This has led to some claims that the court used a model based on culpa and not the contra stipulatorem. This, however, is not true, as is shown by selected legal cases. Högsta Domstolen has stated, as late as in 2001, that before falling back on more general rules of interpretation, such as the contra stipulatorem, one should have taken into account a number of other mechanisms of interpretation. 
	There may be reasons not to use the contra stipulatorem, but it is comfortable to use it when all other options seems to have failed. It is comfortable because it constitutes a form of hidden control by the courts where the court doesn’t really have to declare how and why it has chosen ti interpret a clause in a certain way. Unlike the open control in the 36 § avtalslagen.},
  author       = {Tjellström, Hannes},
  keyword      = {oklarhetsregeln},
  language     = {swe},
  note         = {Student Paper},
  title        = {Oklarhetsregeln – Vad är den, hur används den och bör den tillämpas?},
  year         = {2017},
}