Skriftligt formkrav : det digitala dokumentet

• Main Author: Aho, Sina
• Format: Others
• Language: Swedish
• Published: Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap 2010
• Subjects: skriftlighetskrav; avtalslagen; elektroniska kommunikationsmedier; digitala signaturer; formkrav; Contract law; Allmän avtalsrätt
• Online Access: http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-13973

This thesis seeks to investigate how an agreed written form requirement is met in an electronic environment. Swedish Contract law is applied since Sweden lack specific regulation for electronically closed agreements. Since contractual freedom prevails in Swedish law, it is up to the parties themselves to decide if the formal requirements to be applied. In order to assess whether the written requirement is fulfilled in the electronic environment, a purpose-oriented analysis should be made. When the purpose of why a written form requirement applies has been clarified, the analysis continues to assess whether the objective can be achieved with the modern form of communication. The method is called functional equivalence and means that when an electronic media fulfill the same functions as the paper medium so will the electronic medium as a starting point to give the same legal effect as if it were the case of a written paper document. This is in accordance with the UNCITRAL Model Law on Electronic Commerce. The international debate on electronic contracting are way ahead of Sweden, therefore, the international regulations DCFR, UNCITRAL, UNIDROIT and CISG had been significant. The traditional handwritten document has for a long timed been having a probative value. A paper document can be summed up in its constituent elements, security, accessibility and confidentiality. Security is measured by the courts to give it a certain probative value. The probative value is given when only the integrity and traceability can be ensured. In summary, it can be said that the above criteria gives thus writing its great importance. These criteria are met by the electronic document; therefore, there is nothing to suggest that the writing is not met in the electronic communications media. Finally, the electronic document provides the same high probative value as a paper document.