Pravna narava klavzul o odškodovanju v slovenskem pravu

slovenian

2020

volume 46, issue 8

deprivation   indemnity clauses   legal defects   material defects   warranties

Lexpera d. o. o.
(Obvezni izvod spletne publikacije)

This paper examines indemnity clauses that originate in Anglo-Saxon legal tradition but are often also included in agreements on the sale and transfer of (business) shares in companies in the Republic of Slovenia. Accordingly, the paper analyses the content, purpose, and legal nature of indemnity clauses. It emphasises the classification of the aforementioned clauses within the framework of general civil rules and delimitation of such clauses from general rules governing warranties for material and legal defects of the object of the agreement. Taking into the account the fact that both the rules governing warranties for defects and indemnity clauses protect the buyer against (similar) risks associated with the defects of the object of the agreement, a clear differentiation is not always possible. As some of the preconditions and limitations of application of the general rules on warranties for defects may completely prevent the enforcement of claims on the ground of indemnity clauses, it is crucial that the indemnity clauses are designed in a manner allowing them to be considered as a specific (autonomously agreed) guarantee obligation of the seller, and not as one of the methods for determining specific characteristics of the object of the agreement to which the general rules of warranties for defects apply.

23.03.2021