Tom Madell

Associate professor

Det allmänna som avtalspart : Särskilt avseende kommuns kompetens att ingå avtal samt avtalens rättsverkningar

Author

Tom Madell

Summary, in Swedish

This thesis deals with local government bodies, especially municipalities, as parties to contracts. It primarily focuses on general problems relating to the competence of a municipality to enter into contracts, and the subsequent legal effects, in light ofthe principles and rules ofpublic and private law. When analysing a contract to which a governmental body is a party, it is necessary to consider that the authority of municipalities to form a contract is limited both by the provisions of the Municipal Law, and the special laws and rules which regulate municipal activities. If a municipality, in deciding to enter into a contract,proves to have exceeded its authority, the contract may be invalidated as a result of a determination by an administrative court as to the legality of the decision to conclude the contract. The question is whether a municipality's forming of a contract, even though in violation of public law, nevertheless can create a legally cognizable claim for compensation. Here, the primary emphasis is on the principles of agency and authority in contract law and good faith considerations, viewed in relation to the public law principles of authority. If the contract was not performed, due to a ruling of non-legality or because the municipal council made a new decision in the matter, the private party can commence an action in the courts of general jurisdiction. In determining good faith, it is reasonable that this concept varies depending on the identity ofthe municipality's counterpart. Another basic principle is that a contract can never overrule an explicit provision of law regulating what a municipality can or cannot do. Consequently, a private party's consent can never justify a governmental organ's lack of competence to enter into a contract. Thus, the general principle is that a government body may not use the fact that a contract has been concluded to require performance, compensation or fee whenever the contract is clearly beyond the competence ofthat government body. The municipalities also have certain rights to change unilaterally the conditions of an already existing contract by changing municipal fees and rates. This means that the binding force which normally results from a contract may be diluted when there is a public sector body involved. Thus, the power of a municipality to decide to enter into a contract should be seen separately from its legal authority. In these cases the contract, in itself, can never prevent the municipality from making a decision in violation of an existing contract nor limit the right of the municipality to later modify the conditions by means of a new decision. Also here the counterparts good faith can create a legal claim for compensation.

Publishing year

1998

Language

Swedish

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