Lojalitetsplikt och avtalsfrihet vid fastighetstransaktioner

Sammanfattning

The purpose of the study was to examine how the duty of loyalty and the freedom of contract relate to each other within the context of pre-contractual real estate negotiations. To determine how these legal principles interact, the thesis will largely focus on when the duty of loyalty can be considered to be activated and whether this principle restricts the freedom of contract. The study shows that the duty of loyalty obliges the contracting parties to consider and promote the interests of the other party, while the freedom of contract entails the right to freely decide on the contracting party, the content of the contract, and whether to enter into the contract. The results of the study indicate that the relationship between the duty of loyalty and the freedom of contract in pre-contractual real estate negotiations is such that they cannot be applied simultaneously. Furthermore, the study shows that the duty of loyalty can be activated at an early stage in the negotiations, especially when one of the parties has a legitimate expectation that a contract will be concluded. A critical point for when legitimate expectations are considered reasonable is at the booking of a contract date. If the duty of loyalty has been activated, the freedom of contract may be restricted, as disloyal conduct of a culpable nature can lead to damages according to the legal principle of culpa in contrahendo. The conclusion shows that a party is not obliged to enter into a contract even if the duty of loyalty is activated during the pre-contractual negotiations. However, loyal conduct is required, which can restrict the negative freedom of contract, as one can no longer act as they wish because disloyal actions can lead to legal consequences already at the negotiation stage, before a formal contract is concluded.