Vitesklausuler
En begränsning av ersättningsansvaret
Penalty clauses is a term that can be put in an agreement and is an amount that shall be paid by a part of the agreement if they cause any damage to the other part by breaking the agreement. Penalty clauses have since around 100 years ago had a quite clear meaning in Sweden according to a lot of authors. These authors have the opinion that penalty clauses is an exclusive judgment of the compensation the victim has right to, that means that if the parties have put a lower amount in the clause the victim won?t get full coverage for the damages caused by the other party. That the penalty clause is an exclusive judgment of the victims right to compensation means that the victim doesn?t have the right to request other compensation above the compensation in the clause if nothing else is stated in the clause.A penalty clause may be viewed as a complement to compensation you get according to The Tort Liability Act (1972:206) where it is often difficult to obtain full compensation for damages when it is required that a number of conditions are to be met for damages deleted. It is often difficult to obtain warrants for losses that are not directly connected with the damage itself but still caused by the injury.In this paper I have focused on NJA 2010 s. 629 and the implications this case has had on the assessment of liquidated damages clauses. In NJA 2010 s. 629 the Supreme Court takes up that there is no general rule to use in the assessment of liquidated damages clauses. The Supreme Court in NJA 2010 s. 629 statues that a penalty clause should be assessed individually based on the circumstances of the case, it means that a penalty clause can not always be seen as a limitation of the right of the victim. To make an assessment on an individual case, all the facts are reviewed and a more reliable assessment of the particular cases deemed to be made.