Att vårda och bevara - Närmare om vård- och bevarandeplikten vid hyra av lös sak i kommersiella förhållanden

Abstract: Renting movable property is both practical and cheap. In many cases it serves as an alternative to buying. Renting has ancient origins and was previously referred to as “saklega”. Two aspect that distinguishes the rental relationship from other types of contracts is the renter’s duty of care1 and the owner’s duty of preservation. The duty of care entails that the renter is responsible to take care and maintain the rental property throughout the rental period. The duty of preservation is understood as the owner’s obligation to provide and ensure that the tenant can use the rental property throughout the rental period. However, the extent of these obligations and their relationship to one another under non-binding law are unclear. Unlike the rental of immovable property, the rental of movable property is, in principle, unregulated. The purpose of this thesis has been to investigate the unregulated law, based on the uncertainties and the practical significance of the rental agreement, when renting movable property, especially the extent and relationship between the duty of care and the duty of preservation. I have applied a legal dogmatic method for the thesis. Since there are no directly applicable legal sources, I have instead turned to applying rules analogously from related types of contracts. After the introductory chapter, the thesis investigates and places the rental of movable property in its own legal context. The thesis has defined agreements of the rental of movable property as agreements on granting the right of use to movable property in return for compensation. This definition has subsequently been used to investigate and clarify the boundaries to related types of contracts. The thesis concludes that the renting of movable property constitutes a distinct type of contract. Guidance to determine the parties’ legal obligations has been drawn from analogous application of related types of contracts. The thesis continues with examining the duty of care and the duty of preservation. The obligations of the rental relationship have mainly been analyzed during the rental period. It has been established that the duty of preservation means that the owner is responsible for ensuring that the rental property achieves and maintains the contractual condition for use throughout the entire rental period. Since the risk for the property never passes to the renter, the owner bears the risk of accidents or the complete destruction of the rental property. The owner’s responsibility is balanced against the renter’s duty of care. The renter may not use the rental property for a purpose other than its general use. The renter is presumed responsible for damage that occurs to the rental property. The thesis has concluded that the extent of the duty of care and duty of preservation must be determined on a case-by-case basis, considering the circumstances in the rental relationship such as rent, rental period, and rental property. The duty of preservation is negatively defined, meaning that if a deficiency in the rental property does not fall under the renter’s duty of care, it falls under the owner’s duty of preservation. In any case, the renter’s duty of care complements the owner’s duty of preservation through the common interest in ensuring that the rental property achieves and maintains a sufficient condition to be used throughout the entire rental period.