Application of General Principles in Private Law in the Nordic Countries

Author:Kåre Lilleholt
Position:Professor University of Oslo
Pages:12-19
 
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12 JURIDICA INTERNATIONAL XX/2013
Kåre Lilleholt
Professor
University of Oslo
Application of General
Principles in Private Law
in the Nordic Countries
1. Introduction
General principles, for instance the principle of good faith and fair dealing, reputedly play a prominent role
in the law of the Nordic countries. Further, the application of rules is said to be rather pragmatic in Nordic
law. As a result, the dominant approach in contract law is to search for a reasonable outcome in the inter-
pretation and performance of contracts. This picture of the role of general principles and of pragmatism
in contract law corresponds fairly well to the self-image frequently found in Nordic legal doctrine and in
governmental documents. My aim here is to show that such a reputation may be undeserved, for better or
for worse. In my opinion, the margin for applying general principles to soften the results of literal interpre-
tation and strict performance of contracts is less wide in practice than legal doctrine often suggests.
‘Nordic’ countries will be de ned as Denmark, Finland, Iceland, Norway and Sweden. These countries
share a long history, including a history of legislative co-operation, that justi es considering them together
in discussions of comparative law. Important differences do however subsist both in the legal traditions and
in more recent developments of the law.*1 Given these differences, it will be necessary to take Norwegian
law, which the author knows best, as a starting point here, while comments on the law of the other Nordic
countries will necessarily be less accurate. Politically speaking, the expression ‘Nordic countries’ could also
comprise Estonia, Latvia and Lithuania, but this de nition would be less meaningful in comparative law.
The present discussion will concentrate on contract law. General principles are of course relevant in
other parts of private law as well, but analysis of the entire eld would become too abstract.
2. General principles, in particular the principle of lojalitet
The expression ‘general principles’ has been used with different meanings in different legal contexts. It is
not always clear what is meant when general principles or maxims (Grundsätze) are referred to in govern-
ment documents, in judgments, or in legal doctrine.
Nowadays, any discussion on the general principles of European private law must take into considera-
tion the recent academic texts on principles and model rules, in particular the Draft Common Frame of
1 For some re ections, see K. Lilleholt. European private law: Uni cation, harmonisation or coordination? – R. Brownsword
et al. (eds). The Foundations of European Private Law. Oxford and Portland, Oregon: Hart Publishing 2011, Chapter 21,
pp. 353–361.

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