J. Herre, Ersättningar i köprätten, s. 546. See also Christian von Bar et al, Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR, 2009), p. 953. Contributory negligence refers to a situation where there has been a contribution to the damage from the side of the aggrieved party. The underlying rationale is that the aggrieved party does not deserve to be compensated to the extent that the loss is caused by the aggrieved party’s own behaviour (however, the principle may also be explained in terms of causality, i.e. by the absence of a direct causal link between the loss and the fault attributed to the damaging party). Under Swedish law the principle has its special significance at the time of the damaging event and especially “in the assessment of the initial phase of the course of events leading up to the damage, where a position must be taken if and to what extent the aggrieved party has contributed to the occurrence of the damage” (NJA 2017 s. 9, paragraph 27). The duty to mitigate loss, on the other hand does, not come into play until after the damaging event has occurred. Hence, as a rule, contributory negligence is concerned with the aggrieved party’s negligence before incurring a loss, while the mitigation rule is concerned with a lack of due care after having incurred the loss. However, the aggrieved party’s conduct, although not in any way responsible for the occurrence of the damage itself, may exacerbate the loss following the damaging event. In such a situation, the Supreme Court has stated that both principles can have a bearing on the assessment of damages (NJA 2017 s. 9, paragraph 29). Another point that deserves to be mentioned in this context is that the legal consequences of contributory negligence differ from the legal consequences in cases of failure to comply with the duty to mitigate loss. Failure to prevent avoidable loss leads to the reduction of the claim for damages by the amount of loss that could have been avoided. Conversely, contributory negligence leads to mitigation (Sw. “jämkning”) of the damages as is deemed reasonable by a court or arbitral tribunal in view of the degree of negligence on each side. 8 Cf. art. 77 of the CISG. 9 NJA 2017 s. 9, paragraph 28 (see further about this case in note 11 and infra). 10 See e.g. J. Herre, Ersättningar inom köprätten, p. 579. 11 The case concerns a claim of loss of profit due to a preliminary injunction that was later reversed. A company named Hela Pharma, which owned the trademark “Mivitotal”, brought an action for trademark infringement against the company Cederroth on the basis that Cederroth had started selling and marketing a product called “Multi total”. Both trademarks were used in relation to food supplements. In 2006, the District Court issued a preliminary injunction prohibiting Cederroth to use and sell food supplement bearing the trademark “Multi total”. The preliminary injunction was in force until 2010 when the Court of Appeal reversed the preliminary injunction and dismissed the action for infringement. Following the Court of Appeal’s ruling, Cederroth brought an action against Hela Pharma for loss of profit due to the preliminary injunction. One of the questions put before the Supreme Court was whether Cederroth had an obligation to limit its loss by continuing to sell its goods under a different trademark during the time when the preliminary injunction was in force, which it had not done. The Supreme Court answered the question in the negative and justified its position by e.g. referring to the functions of trade marks, especially the function to guarantee the origin of the goods and to confirm to the consumer that the goods to which the trade mark in question is affixed really originate from the proprietor of the trade mark. According to the Supreme Court, this function would be countered if a party was forced to use a different trade mark than the one it has registered during a pending infringement dispute, and it would also involve a considerable financial risk. 12 To reach this conclusion it is necessary to read paragraph 29 of the award in conjunction with paragraph 33 of the award, and to disregard the part of paragraph 29 where the Supreme Court speaks of the starting point as being when the liability for damages arises. This conclusion is convincing, as the aggrieved party cannot take any action until it learns of the breach. 13 Paragraph 33 of the award. 14 Paragraph 33 of the award. 15 Paragraph 33 of the award. 16The Paragraph 35. Corresponds with e.g. UNIDROIT Principles art. 7.4.8 (2); “ aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm.” 17 Paragraph 35 of the award. 18 Paragraph 36 of the award. 19 Paragraph 32 of the award. 20 See for example J. Herry, Ersättningar i köprätten, p. 545 ff. The argument is recognized from the Common law systems and especially McCormick, see McCormick, Handbook of the law of damages, p. 127 ff. 22 Paragraph 30 of the award. 23 Ibid. 24 J. Munukka, Kontraktuell lojalitetsplikt, passism. 25 J. Munukka, Kontraktuell lojalitetsplikt, p. 168 with extensive references in note 311. 26 Art. 1:103. 27 Art. 7. 28 Art. 1.1.7. 29 von Bahr et al, Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), p. 68. 30 Case no. T-1451-17, pronounced on 29 December 2017. 31 However, the legal effect of not notifying the breaching party may differ. It is not within the ambit of this article to elaborate on this issue further, but it might be interesting for the reader to note that there is a pending case in the Supreme Court on e.g. this subject, case no. T 12/17 (see also the passage in paragraph 20 in case no. T-1451-17). 32 See e.g. preparatory works 1989/90:77 p. 45, C. Hultmark, Reklamation vid kontraktsbrott, p. 27, J. Munukka, Kontraktuell lojalitetsplikt, p. 167 and Ramberg & Ramberg, Allmän avtalsrätt, p. 39. 33 Preparatory works 1989/90:77 s. 64. 34 Paragraph 21 of the award. The author has been involved in a dispute where the circumstances were similar to those of the illustration.
Hänvisas från p. 2 (s. 465)
1.Within the field of contractual damages there are several rules and principles that limit the main rule of full compensation.This article will focus on one of these principles, namely the duty to mitigate loss, and to what extent the duty might be affected by intentional breaches of contract. It is argued, contrary to the result reached by the Supreme Court in a recent judgement, that the conduct of the breaching party should be relevant in deciding whether the aggrieved party has complied with its duty to mitigate.s. 464
2.Virtually all European legal systems recognize, if not the term then at least the concept of, the duty to mitigate loss.The duty entails that an aggrieved party, being in principle entitled to compensation in damages for the loss resulting from a breach of contract, cannot recover damages to the extent that the aggrieved party could have reduced the loss by taking reasonable measures. These measures may be positive in the sense that the aggrieved party must take active steps to reduce the loss, for example entering into a substitute transaction. Alternatively, the duty may be negative, in the sense that the aggrieved party may be required to abstain from actions to prevent further loss, for example continuing performance upon the wrongful termination of the contract by the other party.s. 465
3.It bears mentioning that Swedish law, like many other domestic legal systems, adopts the distinction made between contributory negligence and the duty to mitigate loss. There are indeed grounds for distinguishing between these two related concepts, even though there is a clear connection between them. Both concepts involve the aggrieved party’s duty to act reasonably. As recently made clear by the Supreme Court (NJA 2017 s. 9, see further about this case below), the distinction between contributory negligence and the duty to mitigate loss does not prohibit the simultaneous application of both principles in certain situations.s. 465
4.The duty to mitigate loss can be derived from e.g. the Sales of Goods Act (SGA), which stipulates that the aggrieved party must take reasonable steps to mitigate its loss. If the party fails to do so, it must bear “the corresponding part of the loss itself” (i.e. the loss that reasonably could have been avoided). It is generally accepted that the duty to mitigate loss is a general principle of Swedish contract law, also applicable to other types of contracts than sales of goods.s. 466
5.To determine which measures that are reasonable, the reference point is the conduct of a reasonable person. It is often expressed that the aggrieved party should act “in an economically sensible or rational fashion and in the same manner as the party would have acted if it could not expect to receive compensation for the loss.”Whereas this basic principle seems to remain undisputed and might provide some guidance, the details have become more and more controversial.s. 466