RS 17

131 silent, he may be bound by this erroneous opinion (see a case from 1951 p. 282). Speculation in the other party’s mistake should not pay. Chapter 5 deals with methods used for solving disputes as to the price for work or other performance, when the contract has been concluded without the price having been determined or when the parties disagree on whether it has been determined or not. Here various models of fillingout the contract have been used, depending very much on the type of contract in question, sale of goods, contract work, employment, etc. Principles for placing the burden of proof and general principles for the construction of contracts have been used. It is interesting to note how in the course of time economic ideas have exerted an influence in this field. In the old mercantilistic regulation era the endeavour was to keep prices down. No one should claim more than a “reasonable” price. In the liberal era, with free determination of prices, a price which was “not unreasonable” could be claimed, provided no common price could be established. This was expressly prescribed m the Sale of Goods Act of 1905, still in force but as fromJanuary 1 1991 replaced by a new Act, which prescribes that if no price can be inferred from the contract, the buyer should pay what is “reasonable” with regard to the circumstances. Of course most cases are solved by means of general principles of interpretation: what IS the normal price which the parties must have had in mind? But still the question of placing the burden of proof remains in certain cases. The principles adopted in this respect in later years are more differentiated than those applied earlier. The court takes into consideration whether it is common, as m manv services, not to determine anv prices beforehand, or it considers which of the parties is normallv expected to secure evidence (see a case 1989 p. 2 15). The last chapter (6) — The contract faced icith unjorcsccti circumstances — deals mainlv with the doctrine of presuppositions and also with other methods of supplementing contracts, when the contract is to be applied in unexpected situations. Can a motive that has had a decisive influence on one or on both parties but has not been made a condition for the contract, be taken into consideration when deciding the effects or the validity of the contract? In 1850 the German scholar Windscheid published a book. Die Lehre dcs römischen Rechts von der Voraussetzung, which had a greater influence in Scandinavia than in Germany. The doctrine was elaborated bv the Danish scholar Julius Lassen (1892) and later Henry Ussing (1918). Although not generally accepteef in Sweden the doctrine of presuppositions has had a great influence on legal scholars and judges, at first in the more subjective version of Lassen and later in the more objective version of Ussing. Whereas evervbody must primarily be answerable for his own presuppositions and for omitting to make them a condition for the contract, there are exceptions which the various schools of thought define m different ways. The objective school which is now predominant, lays particular stress on which of the parties is more justly considered, in the eyes of the law, to bear the consequences of the presupposition having failed. Alter a historical exposition of the doctrine of presuppositions particularly in the Swedish legal literature, I have tried to establish when the termpresupposition was first used m such a context (m\' earliest example dates from 1866) and how, as time passed, the doctrine was fullv applied. The doctrine has been used both as a means of interpreting and supplementing contracts and as part of the doctrine of invalidity. I have in this chapter followed how various tvpes of cases have been dealt with, e.g. cases concerning the effect of lost expectations for marriage on sales of propertv to the contemplated son-m-law, cases on condictio indebiti (pavment without debt), etc. In discussing the cases I have also observed alternative methods of dealing with the problem. Although the general clause in § 36 of the Contracts Act can now be applied in man\’ cases ot this kind, the doctrine ot presuppositions does not seem to have become obsolete. It was applied b\’ the Supreme Court in a famous case from 1985 (p. 178).

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