Browsing by Organization "University of Helsinki, Faculty of Law, Department of Private Law"

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  • Nordberg, Eero (Suomalainen Lakimiesyhdistys, 2009)
    This dissertation on the environmental liability of agriculture first provides information about the circumstances and specific nature of the agriculture as an occupation and as elementary production, as well as its connection to certain basic human rights, and generally looks at rural law and environmental law and their intertwined relationship in current agricultural policy in addition to the relationship between agri-environmental liabilities and property rights. The study then concentrates on the legislative environmental directing of agricultural activities especially within cultivation and the various relevant principles represented in the agri-environmental sector of law. The last part is comprised of the main results of the study with some de lege ferenda proposals for addressing obvious shortcomings in the efficiency of current agri-environmental legislation. The dissertation adopts a broad concept of agricultural environmental liability that includes both compulsory and voluntary based legal obligations to prevent and minimize pollution, and to compensate for environmental damage or restore contaminated or polluted environments. Elements of the environment subjected to pollution include surface and ground water and soil, as well as air and even climate. Agricultural activities causing pollution are mainly fertilizing, manure spreading and storage, cattle pasturing and the use of pesticides. For watercourses it is mostly a diffuse type of pollution, appearing as eutrophication, and for ground water and soil it is usually point source pollution and contamination. Environmental protection has since 1980s and 1990s significantly modified the Common Agricultural Popolicy (CAP) of the EU and its legislation. The CAP was strongly shaped by the Uruguay Round with its WTO Agricultural Agreement, and is still under the influence of the prolonged Doha Round, which aims to renegotiate that agreement for the further liberalization of trade. The latest reform of the CAP created the Single Payment System (SPS) by Council Regulation (EC) 1782/2003, with the aim of decoupling the CAP supports from production. The SPS includes additional aid conditions the purpose of which are to ensure that fields are kept in good condition with regard to the environment and further cultivation. In addition, special agri-environmental supports – also of a voluntary nature, though based on legislation – have alongside LFA aid and special national support allowed to Finland after joining the EU in 1995, played a central role in the national adaptation to the CAP. The compulsory agri-environmental legislation, based on the targets and principles of article 174 of the EC Treaty, is mainly comprised of the measures of Directive 91/676/EEC that concerns the protection of waters against pollution caused by nitrates from agricultural sources. It is implemented nowadays in pursuance to the Environmental Protection Act (86/2000, EPA) by Government Decree 931/2000, which stipulates that the actions in it, including instructions for good agricultural practices, refer to the Nitrate Directive´s action programme. The programme is being put into effect throughout the country. Finland thus chose to free itself from the obligation to identify specific vulnerable zones in accordance with article 3(5) article of the directive. The provisions of the Nitrate Decree concern the volume and other conditions for storage of animal manure, and the use of manure and nitrogen fertilizers having seasonal, areal and quantitative restrictions. For instance, animal manure may be applied on a field as fertilizer equivalent to a maximum of 170 kg/ha/year of nitrogen. The use of maximum amounts of nitrogen on fields as fertilizer, contained in mineral fertilizer, animal manure and organic fertilizers, is allowed, for example, as follows: for grassland and pasture, silage and horticultural plants, 250 kg of nitrogen/ha/year (highest); for winter cereals, up to 200 kg of nitrogen/ha/year, of which normally 30 kg are used in the autumn and 170 kg in the spring; and for spring cereals, sugar beet, oilseed crops and other crops, up to 170 kg /ha/year. In addition, Annex 3 of the decree makes some special recommendations on procedures related to the use of animal manure. The Nitrate Directive is now connected to the water policy framework Directive 2000/60/EC (with its planning system and action programmes) which is implemented mainly by the Act on Arrangement of Water Management (1299/2004). This system does not hinder the developing and tightening of the rules of the nitrate legislation also separately, if needed. The role of private law measures is restricted in the agricultural sector mainly to the Act of Compensation for Environmental Damage (737/1994) and the Adjoining Properties Act (26/1920). Both of these are based on objective liability. The principles in the Environmental Protection Act (86/2000) are not understood quite in the same way as the environmental principles in article 174(2) of the treaty. This particularly concerns the principle of caution and care in section 4.1.2 of the act compared to the precautionary principle of the treaty with its heavier weight and larger area of application, as conventionally interpreted in the European Court of Justice. Environmental principles, in any case, work very much towards common goals. From a systematic point of view it would be reasonable in Finnish law to combine the principle of prevention together with that principle of caution and care into a larger main principle, a “principle of prevention and precaution”, for instance. The results from agri-environmental measures in Finland have been insufficient. Although the use of nitrogen fertilizing has generally decreased – the average balance of nitrogen in fields been reduced from 80 kg to 50 kg per hectare and the nitrogen flow potential for watercourses has decreased especially in eastern and middle Finland – the least and most insufficient decrease has occured in the coastal areas, where in many rivers and especially in the Archipelago Sea and Gulf of Finland no reductions in the nitrogen load has been found. The reason is due to national circumstances, the overly high maximum amounts of nitrogen fertilizing allowed in the Nitrate Decree, actually already in the Nitrate Directive, and the fact that Finland by choosing to establish and apply the action programme relating to article 5 of the directive throughout its national territory exempted itself from the obligation to identify specific vulnerable zones. Additionally, the Nitrate Directive and Decree do not regulate or directly affect the use of phosphorous fertilizers. Therefore, reaching more concrete results in the protection of watercourses against eutrophication caused by agriculture is left to be managed by the agri-environmental aid scheme, which covers over 90 per cent of all active farms in Finland but has not in this respect been effective enough. Neither the polluter pay- principle and the precautionary principle nor the principle of prevention have sufficiently materialized for Finnish farming in terms of the protection of surface waters. Instead of the polluter pays principle prevails, through the scheme of agri-environmental aid the so-called provider gets principle. On the other hand, the ground water and soil situation is good, thanks to the ground water pollution and soil contamination prohibitions in section 7 and 8 of the EPA, as well as the prohibitions, warnings and measures prescribed for the use of plant protection and bioside products in accordance with the harmonized legislation in these areas. Still, a lack of harmony is noticeable between environmental aid payed on the basis of the “agreements for cultivation of ground water areas” and the groundwater pollution prohibition in the EPA. The recommendations forming part of the Nitrate Decrees regulations should be transformed into regulations. Limits for maximum nitrogen fertilization should be lowered in watercourse zones especially vulnerable to pollution, as well as to those parts of the country from which the heaviest loads still issue into the Archipelago Sea and Gulf of Finland. Conditions for all agri-environmental aid should include more onerous conditions for phosphorous fertilization. The aid should also be based more on agreements tailored and negotiated to fit the activities and special characteristics of each farm. There are also grounds for lowering the limits of livestock installations requiring environmental permits for their establishment or enlargement, and for placing on these permits – in accordance with the principle that damage should as a priority be rectified at the source, and to enhance agricultural structure – the condition of having in one´s possession, by ownership or long-term lease, sufficient field area for the application of manure near enough to the installation. One possible economical measure to alleviate the diffuse pollution into waters could be a payment system that would be based on the arable land area under active cultivation and each farm´s number of livestock and thus on the farm´s estimated yearly surplus balance of nitrogen and phosphorous fertilization. In general, it would be reasonable in terms of achieving a more genuine application of the polluter pays principle and also the principles of prevention and precaution to put more weight on using the compulsory legal measures and additional conditions in the CAP as well as national agri-aid instead of special agri-environmental aid. The trend of rising cereal prices, as well as possible increasing demand for other agricultural products, could help in the adoption of these measures. Agri-environmental aids should in the long run be mainly used temporarily and as an incentive during transitional periods for the implementation and adaptation of new and stricter legal environmental obligations.
  • Herler, Casper (Talentum Media Oy, 2008)
    Väitöskirja käsittelee maaperän ja pohjaveden pilaantumisen ympäristöoikeudellista ennallistamisvastuuta. Nykyinen ympäristöoikeudellinen lainsäädäntö sisältää erilliset pilaamiskiellot maaperän ja pohjaveden osalta. Mikäli näitä kieltoja on rikottu, voi ympäristöviranomainen kohdistaa pilaajaan tai nykyiseen alueen haltijaan vaatimuksia alueen pilaantuneisuuden selvittämiseksi ja kunnostamiseksi. Aikaisemmin kyseisen kaltaisia nimenomaisia pilaamiskieltoja ja vastuusäännöksiä ei ole sisältynyt lainsäädäntöön. Maaperän ja pohjaveden pilaantumisen ilmetessä tavanomaisesti viiveellä, on pilaava toiminta usein ehtinyt joko päättyä tai sitä on ehditty harjoittaa jo pidemmän aikaa ennen kuin kunnostustarve ajankohtaistuu. Kunnostuskustannusten ollessa määriltään yleensä huomattavat, on huomio kohdistunut siihen millä edellytyksin vastuulainsäädäntöä vanhemmissa pilaantumistapauksissa voidaan asettaa taannehtivasti, eli toisin sanoen pilaantumisen jälkeen. Tämä on yksi väitöskirjan keskeisistä tutkimuskysymyksistä. Väitöskirjassa on tutkittu historiallisesti sitä, mitä aikaisemmin tiedettiin maaperän ja pohjaveden pilaantumisesta sekä minkälaista varhaista lainsäädäntöä tätä pilaantumista koskien aikaisemmin on ollut olemassa. Lisäksi kirjassa arvioidaan millaista painoarvoa voidaan tälle aikaisemmalle tiedolle ja lainsäädännölle antaa, kun nykyisin arvioidaan pilaajan vastuuta pilaantumisesta. Yhtenä osana tätä tutkimustehtävää kirjassa analysoidaan taannehtivuuskiellon ulottuvuutta rikosoikeudessa, siviilioikeudessa, vero-oikeudessa ja ympäristöoikeudessa. Tältä osin väitöskirjassa todetaan, että taannehtivalle lainsäädännölle ei rikosoikeuden ulkopuolella ole ehdotonta kieltoa. Sen sijaan muilla oikeudenaloilla kyse on periaatteesta, jonka punninnassa tulee huomioida yhtäältä vastuullisen luottamuksensuoja aikaisempaan tilanteeseen ja toisaalta vastuuta puoltavat seikat. Tutkimuksessa selvitetään myös seikkaperäisesti maaperän, pohjaveden ja rakennusten pilaantumista koskevaa lainsäädäntöä ja oikeuskäytäntöä. Yksi johtopäätöksistä on, että vuonna 1993 kumotun jätehuoltolain merkitystä vastuuperusteena vanhoissa pilaantumistapauksissa on ylikorostettu. Väitöskirjan jälkimmäisessä osassa arvioidaan mahdollisuutta kohtuullistaa kohtuutonta kunnostusvastuuta. Suomalaisessa julkisoikeudessa ei ole yleistä periaatetta julkisoikeudellisten velvollisuuksien kohtuullistamisesta subjektiivisesti, eli yksilön näkökulmasta katsottuna kohtuuttomien olosuhteiden vallitessa. Väitöskirjassa väitetään, että niin nykyisen alueen haltijan kuin pilaajankin vastuuta voidaan kohtuullistaa tiettyjen edellytysten vallitessa. Kohtuullistamismahdollisuuden arvioinnille on väitöskirjassa esitetty viisi arviointikriteeriä. Kriteerien soveltaminen on olennaisesti sidoksissa tilanteen kokonaisharkintaan. Kohtuullistamisen luonne on näkökohta, joka ei ole saanut suurempaa huomiota maaperän pilaantumisen vastuukysymyksiä koskevassa keskustelussa. Kohtuullistaminen merkitsee myös julkisoikeudellisessa asiayhteydessä sitä, ettei vastuuta tarvitse määrittää – joko tai – vaan se voidaan kohtuullistaa tietyksi – kohtuulliseksi – osaksi alkuperäisestä.
  • Pönkä, Ville (Edita, 2008)
    Objectives and Management of Validity of Shareholders Agreements A shareholders agreement is typically defined as a long-term co-operational contract made between the shareholders of a company limited by shares. These agreements (which are also known as voting agreements and consortium agreements) typically govern shareholders mutual relations and their rights and responsibilities in the company. Also, venture capitalists often use shareholders agreements to ensure the successful realisation of investments made in the target company. Furthermore, it is quite common that the company itself or its significant creditor engages with an agreement made between the shareholders. Shareholders agreements may comprise all or some of the shareholders of a company; a majority group or a minority. Shareholders agreements exist in a large number of Finnish companies. They are most common in small and medium-sized enterprises, but are also used in companies with more extensive shareholder structures. Shareholders agreements are not subject to formal legal requirements and they are regulated by principles of general contract law. Neither the Finnish Companies Act nor other Nordic Companies Acts recognize these agreements. However, company law also has an indirect effect on shareholders contractual freedom and several provisions of the Companies Act have to be taken into account when examining, for example, questions concerning the validity and interpretation of a shareholders agreement. This is why it is very important to pay close attention to the operational environment in which these agreements are made and enforced. The research question of this legal dogmatic thesis has been divided into two principle themes. First, I have examined different objectives of shareholders agreements, and secondly, different aspects concerning the binding force of these contractual arrangements. In the first part (chapter 2: Relation of Shareholders Agreements to the Companies Act, and chapter 3: Objectives of Shareholders Agreements) the main goal has been to determine the normative and actual extent of the shareholders contractual freedom. In other words, my purpose has been to examine what issues can and should be regulated by shareholders agreements within the normative boundaries set forth by the legislator. The next stage has been to examine different dimensions of the binding force of agreements made between shareholders (chapter 4: Management of the Validity of Shareholders Agreements). Firstly, I have determined the legal effects of these agreements in various relations; secondly, I have focused on different factors that may compromise the validity of these arrangements and finally, I have discussed the legal problems concerning the termination of the co-operational relationship. Although the research question of this thesis has been divided into two parts, the various legal problems discussed are connected with the same general theme: the freedom of contract and pacta sunt servanda principles. Conversely expressed, my main objective has been to determine the relevance of these fundamental contractual principles in the field of company law from the perspective of a certain type of contract. The source material of this research consists mainly of Danish, Finnish, Norwegian and Swedish legal writings and court practice. However, it should be noted that shareholders contractual relations have not been widely studied in Nordic literature. Also, court cases are quite scant, because shareholders contractual conflicts are usually resolved in arbitration proceedings. I have also made an empirical survey concerning agreements made by owners of municipal water management and waste disposal companies. The purpose of this data has been to provide concrete examples and information on shareholders agreements in practice.
  • Wuolijoki, Sakari (Helsingin Kamari Oy, 2009)
    This doctoral thesis explores the bank s obligation to provide advice and information from a civil law point of view. In this context it must be noted that the concept of bank in the title does not exclusively refer to banks in possession of a Finnish banking licence. The notion also covers investment firms. In regard to the beneficiary of the information or advice the scope of this thesis covers both non-professional consumer customers and professional customers. The dissertation investigates the background as well as the underlying purpose of the obligation to provide information and advice (chapter 2). Thereafter the study reviews what general and specific information obligations banks have to meet in the provision of different services (chapter 3). These services are investment services, credit services, payment services, corporate finance services and legal services. Afterwards factors influencing the actual content of the advice or information are examined (chapter 4). Subsequently, the consequences of the negligence of these obligations are scrutinised (chapter 5). Finally, the thesis draws conclusions based on the findings in the previous chapters (chapter 6). In doing this, the doctoral thesis employs a legal dogmatic approach. Information asymmetry is a widely recognised problem which creates a lot of market failures. This has lead to a high number of statutory disclosure duties. On the other hand, information can be seen as a valuable good or as property. Because of this, the impacts of duties to disclose information free of charge should be assessed in order to avoid inappropriate disclosure obligations. In fact, disclosure duties can often be criticized since they easily lead to information overload. In addition to statutory disclosure duties, the court praxis and legal doctrine recognise other obligations to inform or advice, based e.g. on the loyalty principle. The problems of disclosure duties disincentive impact to information gathering and information overload should be kept in mind also when operating with the loyalty principle. As a rule, banks stand in a contractual relationship to their customers. Therefore the liability for neglect of the obligation to provide information or advice is usually contractual, and not tortuous. The customer will be entitled to the expectation interest. This means that he or she is to be put in as good a position as that which would have resulted, had the contract been performed. As initially stated, banks are subjected to a wide range of information obligations. Because of this, customers are in peril of being overloaded with information, especially when the information is provided in standardised form. The number of obligations to provide personal advice is lower, even if advice usually is of greater value than standard information for the customers. Since the providing of advice is rather cost-intensive from the bank s point of view, banks render this service mainly against payment only. In the provision of different services banks are primarily obliged to fulfil these duties only towards their consumer customers. However, the scope of the statutory obligations to provide advice and information is not always clear. In light of the purpose of the regime, every customer regardless of type should in every situation be able to make an informed decision based on all relevant facts. Where a statutory pre-contractual obligation does not exist, banks can therefore be obliged to advice or inform based on the general principles of law of contract, e.g. the principle of loyalty. The thesis includes also a more detailed summary in English.
  • Kolehmainen, Antti Juhani (lakimiesyhdistys, 2006)
    Agreements and administration of a decedent's estate In this thesis, I shall discuss agreements entered into by parties to a decedent's estate on administration of the estate. These agreements (shareholders' agreements) may cause problems in either the relationships between the shareholders or their relationships with third parties outside the estate. My particular aim is to assess: (1) how the mutual rights and obligations are arranged once the shareholders have entered into a joint administration agreement, and (2) what effect a joint administration agreement has when one of the parties in a legal relationship comes from outside the estate. In addition to actual contracts, I shall discuss situations (agreement-like situations) where acts performed by the parties create new rights and obligations. One example of such a situation is ex post facto ratification (ratihabition). In addition to clarify the contents of the norms, I shall seek to systematize the set of norms concerning shareholders' agreements. Therefore, this study falls within the sphere of legal dogmatics. In this thesis, I shall particularly focus on the possible effects of the interaction between contractual parties on the legal relations between both the parties to the estate and between the contractual parties and third parties. In this respect, the subject extends to other areas of the Finnish contract doctrine, and the original subject of this study - joint administration agreements - becomes a research tool as well. The purpose of this study is to establish to what extent the interaction between contractual parties (or joint actors) may create, alter or revoke rights and obligations in the same ways as specific declarations of intent. A particular point of my interest is the dynamic features of the Finnish contract doctrine. For this reason, the starting-point of my study is the hypothesis that a typical agreement on the administration of a decedent's estate and the legal relations created by the agreement forms a process. This hypothesis will be tested in this study. This study shows that the Finnish contract doctrine, which has largely been created for the purposes of bilateral legal acts related to the sale of movables, does not easily apply to the regulation of continuous contractual relationships such as those discussed in this study. Changes in long-term contractual relations occur only gradually and on a factual level. The status of the agreement which has originally defined the rights and obligations of the shareholders can change with the shareholders' acts (whether these are active or passive). The shareholder's acts may indicate that they no longer consider an original term of the agreement binding on them. As a result of the interaction between the shareholders, internal agreements (of a certain kind) may emerge during the contractual relationship, which will considerably alter the role of the original agreement setting out the norms for the relationships between the shareholders. Accordingly, the shareholders' contractual relationship is a non-static process. The shareholders' legal positions may also be affected after the conclusion of the contract by changes in the circumstances, in which case the doctrines on excess difficulty or force majeure apply, for instance. Furthermore, the processual nature of the contractual relationship is effected by several flexible norms (Section 36 of the Contracts Act; Chapter 24, Section 5 of the Code of Inheritance; and the principle of fidelity). It can therefore be said that the importance of the declarations of intent (and events at the time of these declarations) underlying the shareholders' rights and obligations and creating contractual relations declines as the interaction between shareholders increases and circumstances change. The shareholders' legal positions with regard to an undistributed estate are thus determined on the basis of a very broad range of material. In some cases, such material implies an agreement or authorization between the shareholders (or between the estate and third parties). Occasionally, such agreements or authorizations imply an ex post facto ratification (ratihabition). In some rare cases, the shareholders or the decedent's estate have, under certain facts and circumstances, incurred an obligation under Chapter 18, Section 3 of the Code of Commerce to pay compensation for the benefit gained. Considering that an obligation incurred by a decedent's estate or the shareholders of a decedent's estate may often be based on other facts in law than a specific agreement, we could, similarly to Kurt Grönfors, call this a case of facts giving rise to an obligation. Facts giving rise to an obligation often affect contractual relationships even where they do not lead to an actual contract. Ratihabition, for instance, is often evidenced by the parties' actions rather than their specific declarations of intent. A commitment (of which entering a contract is also an example) may be a process which consists of a continuum of facts in law. Sometimes (although rarely) an obligation may emerge even without the principal being aware of a party's lack of authority to perform an act (Chapter 18, Section 3 of the Code of Commerce). If the principal is aware of an unauthorized act but does not respond to it in any way, this may imply that the act has their ex post facto ratification. An active act performed by a party may directly create an agreement or a comparable state of affairs. We could therefore see a commitment as a process and speak of facts establishing an obligation. Examining whether acts performed by shareholders have created an agreement requires considering the type of the agreement. For instance, the facts and circumstances referring to leaving an estate undistributed (joint administration agreement) can reasonably be expected to manifest a clear intention of a commitment. Leaving an estate undistributed is usually a very significant legal act for the shareholders as it deprives them of an opportunity to place the estate under an administrator or have the estate distributed during the life of the agreement. The situation is different if there is already undeniably a joint administration agreement between the shareholders and the problem is whether the shareholders can be considered to have altered their contractual relationship through an internal agreement. The legal situation created by a joint distribution agreement (and sometimes administration under Chapter 18 of the Code of Inheritance) must often be given a specific meaning. A successful determination of a rational meaning which corresponds best to the shareholders' intentions usually requires a low threshold for agreements. In practice, this specifically means that other acts of the shareholders than actual declarations of intent may gain significance easier when internal agreements are considered. This will also emphasize the processual nature of the contractual relationship between the shareholders. An ex post facto ratification of a legal act constitutes a recognition of the binding nature of that act. Unlike a contract, such a ratification is not future-oriented; it does not imply that any other future acts of the other party will be accepted as well. Consequently, the emergence of a ratification is based on lighter facts and circumstances than an agreement. The same applies for authorization. Because the authorizing party always has the option of revoking the authorization, an authorization is less restrictive on a principal's freedom of action than a contract. Paying compensation for benefit gained is the least compelling of the above obligations. It may have all the constituent elements of an obligation even if the act performed by the party showed no intention of a commitment. After all, in the case of compensation for benefit, principals' are bound by other parties' legal acts only to the extent of the benefit they may gain from it. If that benefit is less than the commitment, the obligation is limited to the amount of the benefit, or the amount of the enrichment. Whether any of the constituent elements referred to by the legal institutions mentioned above exist cannot be determined on the basis of a single legal act. Examination of social contractual relationships such as decedent's estates requires a more than atomistic approach. If the contract as a whole and the operating environment are taken into account in the legal acts performed by the parties in their contractual relationships, exclusion of such aspects when judicial decisions are being made will easily lead to an outcome which the parties have not anticipated at all, and the contract(s) will have failed to provide and ensure the stability and predictability expected from it. This study shows that, for the dynamics of the relationship between the contracting parties, the processual nature of a contractual relationship has more weight than that of an agreement (if the actual agreement is defined as a set of facts that consist of declarations of intent creating certain rights and obligations; in other words, defined as a legal act). Because of the above legal institutions, the shareholders' right and obligations cannot be considered static. This is illustrated by the main claim of my thesis: joint administration should not examined in the light of the norms of the Code of Inheritance and the principle of joint administration alone. As joint administration continues and cooperation increases, the rules of contract law gain more weight in joint administration. To this day, joint administration has been rather too narrowly considered a problem in the application of the Code of Inheritance, particularly Chapter 18, Section 2, which concerns the principle of joint administration. The following remark on joint administration agreements is also related to the main claim of my thesis: While the time when the declarations of intent which establish the original contractual relationship (non-distribution agreement) are made still remains the key moment for determining the shareholders' rights and obligations, the significance of that moment for shareholders' agreements is lower than usual; in this case, applying the time of the declarations of intent as the main systemic rule for determining the moment when legal consequences begin is clearly a weaker rule than in the case of a sale of movables, for instance. With regard to shareholders' agreements (and other long-term agreements), judicial decisions should be made in a manner which involves the option of departing from the main rule referred to above if it is evident from the parties' actions that they had not intended to fix their mutual rights and obligations to that specific time.
  • Enkvist-Gauffin, Joachim (Svenska handelshögskolan, 2006)
    The study presents the development of new communication technologies and the emergence of new marketing methods. The use of new communication technologies in marketing has brought with it some problems, which didn't previously exist or which were of little import in 'traditional' marketing. These new problems can be divided into the following three categories: 1) marketing messages causing expenses for the recipient; 2) marketing messages causing impediment for the recipient; and 3) marketing perceived as being intrusive. Legislation is hectically being drawn up now around these issues. Individual states, national authorities, and international organisations are working to provide regulation of marketing through newly available technologies. One of the main questions is whether the legislation should be based on an opt-in or opt-out solution. An opt-in solution requires the sender of a marketing message to first secure the recipient's prior consent to receiving the message. An opt-out solution is when marketing messages can be sent to recipients, if they have not specifically notified the sender that they do not wish to receive such marketing communication. According to current legislation following technologies require prior consent for marketing use: automatic calling machines, fax machines and e-mail. The central theme of the thesis is to analyse whether the current opt-in list is comprehensive enough, or whether it should be broadened. The study deals with following marketing methods: web pages, banners, pop-up windows, e-mail, mobile phones, fax machines, blogs, RSS, Instant Messaging and VoIP. In addition to these marketing methods the study also comprehends more traditional marketing methods such as doorstep selling, telemarketing, TV and radio marketing, addressed and unaddressed direct mail. Since new channels of communication continue to be developed, it would not be meaningful to legislate by specifically naming the technologies that require prior consent for marketing use. A more expedient solution is to create legislation stating the following three criteria: 1) the marketing measures must not cause the recipient any expense - The No-cost Rule; 2) the marketing measures must not cause any impediments for the recipient - The Impediment Rule; and 3) the marketing measures must not be too intrusive - The Intrusiveness Rule. If marketing breaks any one of these rules, regardless of the communication method used, an opt-in solution should be applied. Another central part of the thesis is the question how the sanction system should be shaped. How can the recipient receive compensation to cover the costs caused by marketing measures? Is it time for Finland to implement punitive damages? Maybe it's time for Finland to introduce class action? Can disputes arising from marketing measures via new communication channels be settled by virtual courts or ODR?
  • Pykäläinen-Syrjänen, Ritva (WSOY, 2007)
    The efficiency of foundations The effect of corporate governance provisions on the ability of foundations to fulfil their purpose efficiently This study primarily relates to the preventive aspect of the structures that protect foundation assets, as regulated by the valid Foundations Act (Säätiölaki in Finnish), and focuses on provisions concerning the election, supervision and compensation of management. The first objective is to analyse how well the structure and norms of Finland's Foundations Act serve to fulfil the purpose of foundations. The second objective is to use the above results to assess the differences between the provisions of the Foundations Act and the Companies Act (Osakeyhtiölaki in Finnish) in motivating management to fulfil its purpose efficiently. The third and final objective is to present conclusions, as well as de lege ferenda perceptions. The study is divided into two main chapters. Chapter 3 presents a legal-dogmatic view. Chapter 4 compares the provisions of the Foundations Act and the Companies Act legally from a legal-economic perspective. The theoretical comparative analysis is based on an economics theory in which the Companies Act is considered as a model agreement whose provisions are aimed at reducing the transaction costs arising from the agreement. The theory is tested against the corresponding provisions of the Foundations Act, and the theory of asymmetric information and the principal-agent dilemma is also applied. The starting assumptions are efficiency and the rationality of the individual, while the existence of transaction costs is also recognised. The only mandatory administrative body of a foundation is the board of directors, which sees to the affairs of the foundation in compliance with the law and the foundation's by-laws. The foundation's by-laws specify how the directors are to be appointed. The by-laws may also provide for a body above the board of directors that can be entrusted with exclusive decision-making power in certain matters. However, the board of directors is the only administrative body with the power to represent the foundation. The foundation must have a minimum of one auditor, appointed as specified in the by-laws. It is supervised by a government authority (by the National Board of Patents and Registration in Finland) which oversees that the foundation is administered in compliance with the law and the foundation's by-laws. The foundation s financial statements and audit report are key tools in the supervision process. The government authority also has other means of intensified supervision at its disposal which may only be used, however, if a member of an administrative body is accused of a punishable act. Shareholders wield the ultimate power in a limited liability company. The board of directors is the only mandatory administrative body. A shareholders' meeting (general meeting) elects the board, unless the company's by-laws stipulate that it must have a supervisory board which elects the board of directors. Nevertheless, it is the general meeting that elects the supervisory board, if one exists, or at least the majority of it. A limited liability company must have at least one auditor, who must be elected by the shareholders. The mandatory provisions of the Companies Act concerning the election of management lead, more efficiently than the corresponding, non-mandatory requirements of the Foundations Act, to a minimisation of those agreement costs that result from adverse selection. In addition, the mandatory provisions of the Companies Act concerning the election of an auditor, unlike their non-mandatory counterparts in the Foundations Act, result in a minimisation of transaction costs caused by the moral hazard of management. The Companies Act enforces a clear division of power between the main players. Moreover, a supervisory board always supervises the board of directors. Due to these mandatory re-quirements, shareholders can exercise firm control over the directors and can make such agreements that serve to minimise the principal s risks related to an agent and the resulting transaction costs. The Foundations Act, too, has mandatory provisions on the division of power between a board of directors and a supervisory body, if such exists. On the other hand, the Foundations Act has no mandatory provisions on the tasks of the supervisory body, such as overseeing the board of directors. As a result of this and other factors, the Foundations Act provides less incentive for management to fulfil its purpose than the Companies Act does. The structure of the Companies Act concerning the formal organisation of a limited liability company enables a clear division of responsibilities through individual provisions. As the provisions are mandatory in nature, they lead to a minimisation of transaction costs. When, additionally, the corresponding provisions concerning the initiation of legal action are partly mandatory, the Companies Act minimises agent-related costs. Efficiency is increased by the power of the supervisory board, if one exists, to convene extraordinary general meetings and the shorter-than-normal periods within which lawsuits must be brought. As with the Companies Act, the structure of the Foundations Act concerning the formal organisation of a foundation also enables a clear division of responsibilities through individual provisions. However, the fact that the Foundations Act does not stipulate mandatory supervision of the board of directors by a supervisory body nor, even if the foundation s by-laws stipulate such supervision, the methods for so doing means that the Foundations Act provides less incentive for management to fulfil its purpose than the Companies Act does. The Companies Act provides for efficient internal control. In foundations, this control has been assigned by law to a government authority. But because the Foundations Act does not ensure the independence of the auditor, it cannot guarantee the efficiency of supervision. Furthermore, the government authority s lack of an incentive leads to inefficient control. The Companies Act does not regulate the compensation of directors. However, the principle that work must be compensated is implicit. The Foundations Act explicitly states albeit in somewhat contradictory form that members of an administrative body may be paid a reasonable fee, unless such payment is prohibited by the by-laws. Rational as they are, individuals react to monetary incentives. For this reason, the Foundations Act should also embody the principle that work must be compensated. Corporate governance systems aim at improving owner control. Their mechanisms and controls are intended to reduce inefficiency resulting from moral hazard and adverse selection. The author argues, on the basis of theoretical comparative analysis, that the corporate governance provisions of the Companies Act, concerning the election, supervision and compensation of management, contain more powerful incentives for management to fulfil its purpose efficiently than the corresponding provisions of the Foundations Act. In summary, there appears to be room for improvement in the currently valid Foundations Act.
  • Vedenkannas, Matti (Suomalainen lakimiesyhdistys, 2007)
    The Comfort Letter as Guarantee A comfort letter is a document given to a creditor as collateral for a loan. In the letter the issuer of the document (the supporter) asserts that the supporter is ready to finance the debtor if necessary. This kind of a document is normally given to the creditor in lieu of a guarantee. The supporter is usually the parent company of the debtor (the subsidiary company). The comfort letter is normally a result of the opposing interests of the supporter and the creditor. The supporter is usually unwilling to guarantee a loan for various reasons. The creditor, by contrast, may not be willing to grant a loan without some kind of security. As a compromise, the parent company may give a comfort letter as collateral for the loan. The central clause in the letter may be so vague, that it cannot be concluded from the linguistic form whether the document is binding in law. There is no unequivocal (yes or no) answer to the question of whether the vague comfort letter is binding. The key to this interpretive problem depends on various circumstances. However, it has been suggested that on the basis of an analysis of the circumstances - it is possible to offer various guidelines as an answer to the binding question. First, the problem will be considered on the basis of established contractual interpretive rules and principles. If this analysis proves inconclusive, then the special characteristics of comfort letter arrangement will be taken into consideration. In this case, the result of the interpretation could be based on the consideration of equity. The theoretical framework or the justification for the approach could be based on the theoretical doctrine that emphasises the dynamic characteristic of the contractual relationship. The study discusses the question of whether liability for damage could be based on non-contractual liability (culpa in contrahendo) or on lifting the corporate veil doctrine. The motive for the comfort letter arrangement may be a negative pledge in the supporter s credit agreement or the unwillingness of the supporter to enter new guarantee agreements into the accounts. The study offers an extensively analysis of the various legal problems of the motives of the parties involved. Keywords Comfort letter, binding force, non-contractual liability, balance sheet information
  • Pihlajarinne, Taina (Edita Publishing Oyj, 2010)
    Study seeks to clarify the scope of protection for protected signs, such as trademarks and trade names, in situations where a protected sign serves as a domain name. The principal question is whether this scope of protection is different compared to general scope of protection for protected signs. I have discussed the criteria defining the content of protection applicable in situations where domain name registration and use conflict with rights for protected signs. Also the criteria used to resolve conflicts between several rights for protected signs in these situations are being examined. When applying the rules governing the cancellation of a domain name registration, the relevant criteria include the criterion of confusion, the rule governing priority in domain name registration, the rule governing lack of legitimate interest, the criteria concerning protection of the independent goodwill of a sign and the criterion of bad faith. According to these rules, the criterion concerning the territorial protection of intellectual property, the requirement to use a sign in commerce and the requirement to use a sign in order to distinguish origin or in a way that damages its origin function, are irrelevant. For instance, the criterion of confusion applied to domain name use is interpreted in an autonomous way: the assessment of confusion is based mainly on the things that an internet user would know before opening an internet site. Therefore, the initial interest confusion doctrine is being applied on the subject. Moreover, when a situation concerning the prohibition of domain name use is resolved by applying trademark law or trade name law, there is a tendency, at least some to some degree, to reconstruct the general criteria defining the content of protection and the criteria used to resolve conflicts between several rights for protected signs. This demonstrates a fragmentation process in the area of the law of protected signs. Modification of the said criteria is necessary in order to ensure a suitable level of protection within this new way to use signs. This indicates that the way of use a protected sign has increasing relevance when determining the scope of protection.
  • Saarikoski, Michael (Lakimiesliiton Kustannus, 2009)
    According to the principle known in the early Roman and German Law the victim s pre-existing disposition or sensitivity to bodily injury is not to be accepted as a cause to limit a tortfeasor s liability. Instead, the tortfeasor has to take his victim as he finds him, talem qualem. In the Common Law this principle goes by the name thin skull rule , the leading case in this regard being Dulieu v. White and Sons (1901). Talem qualem has been introduced to Nordic doctrine mainly from German literature on the adequacy-theory, known in the Common Law as the theory of Proximate Cause. Until recently the principle has been given the following expression in the Study Group on a European Civil Code s proposed Draft Common Frame of Reference (DCFR) Article VI.-4:101(2): In cases of personal injury or death the injured person s predisposition with respect to the type or extent of the injury sustained is to be disregarded . This controversial principle seems to have been rejected, however, in the Principles of European Tort Law (PETL) drafted by the European Group on Tort Law. As it is stated in the PETL Article 3:106: the victim has to bear his loss to the extent corresponding to the likelihood that it may have been caused by an activity, occurrence or other circumstance within his own sphere . In the present study the talem qualem principle is not specified to apply restrictedly to the primary causal relationship only. In other words the issue is not merely that the tortuous act would have to be considered a legally relevant cause of an injury although the tortuous act is not sufficient to cause it alone without the victim s predisposition. This is a question of a wider phenomenon. Besides this basic question of the primary causal relationship between a tortuous act and an injury, should also be taken into consideration the fact of what symptoms and other consequences of the bodily injury form the basis of liability. From this point of view the relevance of the talem qualem principle is all but clear. The talem qualem principle has been placed into the adequacy-theory as a counter-principle for foreseeability. In turn, the adequacy-theory is a judicial theory of the extent of liability determining the prima facie weight of the talem qualem principle with respect to foreseeability. With supporting arguments arising from an analysis of Finnish, Swedish, Norwegian, and Danish Supreme Court practice, Finnish Insurance Complaints Board practice, and an investigation into the coherent structure of Nordic tort law it is argued that the talem qualem principle applies restrictedly to bodily injuries caused by (a) criminal, (b) intentional, or (c) grossly negligent acts. Also, a general model for solving issues on medical causation is formed.
  • Mielityinen, Sampo (Edita Publishing Oy, 2006)
    The main objective of the study is to articulate and justify the general principles of Finnish tort law. In the second place, the study aims at specifying what kinds of argument are relevant in supporting a claim that a certain principle should be recognized as a legal principle. In the study, legal principles are understood as general and explicitly value-laden legal norms. Their validity conditions are twofold: legal principles should have institutional support and be morally and/or politically justified. In the study, the requirement of institutional support is given a substantial interpretation: in order to have institutional support, a principle should justify legal rules. A principle's institutional support is strengthened when a) the ruling required by an unambiguous legal rule is justified by the principle or b) the facts to which a vague legal rule attaches importance are relevant in evaluating the justification of a decision from the principle's point of view. In order to be a legal principle, a principle should gain wide institutional support from legal rules which are important in practice and have strong weight as the basis of a decision. At the same time, a scholar should critically evaluate the moral justification of a principle. In the study, four general principles of Finnish tort law are articulated. 1) The principle of excessive risks: if the damage results from imposing the injured party's fundamental rights to excessive risks, the wrongdoer is liable for damages. The principle requires the compensation to be proportional to the excessive risks, and gains institutional support mainly from fault liability. 2) The principle of compensation for grave injuries: a natural person suffering grave personal injury is entitled to compensation. The principle does not prefer tort liability to other methods of compensation. Within Finnish tort law the principle gains institutional support from various legal rules relaxing or departing from the requirement of fault. 3) The principle of the fair distribution of harm: the burdens of risky human activities should be distributed to those who reap the benefits of the activity, ideally in proportion to the benefits. The principle gains wide institutional support from various rules of Finnish tort law, e.g. those concerning vicarious and strict liability. 4) The principle of outcome responsibility: tort law should express that a human being's prima facie responsibility for a damage he or she has caused is proportional to his or her ability to foresee and avoid the damage. In practice, the principle e.g. supports liability for damages if the foreseeability of the damage is explicitly recognized in the reasoning of the court. The principle gains fairly wide institutional support from various forms of tort liability.
  • Kalliomaa-Puha, Laura (Kelan tutkimusosasto, 2007)
    Recently the word agreement has entered the vocabulary of the Finnish social welfare ad-ministration. Due to the growing number of elderly people and the decline in public spend-ing, new and cheaper ways of handling care for the elderly have been sought. Privatisation and deinstitutionalisation have taken place and the pluralism in care is now to a growing extent reaching the home. Since the 1990s, the municipalities have been making agreements with relatives and other intimates - spouses, parents, children, close friends - to take care of the elderly and the sick at home as part of the official system. Since 2006 support for informal care has been regulated by its own law. These informal care agreements fall on the borderline between paid and unpaid care, private and public care and between private and public law. They are hybrids of private and public law yet unsuited to the legal concepts of either: informal care agreements do not eas-ily fit in with the ideas of contract law, labour law, consumer protection, tort law, procedural law or even social welfare law. Support for informal care also seems to be ill-placed among the European Union ideas on social welfare. This study examines support for informal care from a legal perspective: explains what this kind of contractualism means to families, what the legal safeguards are, what kind of tools this system offers the families when problems arise and how useful they are, and deliberates on the duties and responsibilities of the municipality, the caregiver and the person who is being taken care of. The informal care agreements do not provide proper safeguards for possible problems in informal care. The conventional idea of two parties in contract or tort law does not fit in with the tripartite reality of informal care there are always three parties to it even though informal care contracts are concluded between the caregiver and the municipality only. Although the tools offered by public law even out the problems, guarantees of judicial redress are not always available. For example, in the event of abuse, the care receiver often cannot use the legal remedies offered, appeal for the nullification of any informal support decision, sue for damages or report an offence. Greater responsibility for the municipalities is recommended for the safety of both the care receiver and the caregiver. It is also recommended that the chosen tool, the agreement, should be developed further according to the ideas of proactive law. Informal care agreements could be used more flexibly and creatively to make the lives of the elderly better anticipating the risks in homecare and taking into account the needs of individual care receivers, individual caregivers, and individual families.
  • Norros, Olli (WSOY, 2007)
    As a rule, the scope of contractual obligations is limited to the contracting parties. This legal principle is called the doctrine of privity of contract. It is also clear that in many situations a third party is de facto dependent on a contract that the party is not a party to. The trends toward specialization and outsourcing have increased the number of parties that participate in producing a product or service. If the privity doctrine is followed without exception situations can arise rather often in which the creditor suffers a loss because of a defective performance by a party not contractually liable to the creditor. Although contractual obligations are mostly limited to the contracting parties, in Finnish law there are numerous exceptions. Obviously, the privity doctrine is still a strong main rule, but it can be deviated from if there are sufficient real grounds. Instead of understanding the privity rule as a strict and formal norm, it should be seen as a presumption grounded in practical reasons that can also be bypassed for practical reasons. The most essential reason for a strict interpretation of the privity doctrine is the need to be able to manage contractual risks contractually. The most important argument for deviating from the privity doctrine is that the systematics of law should adapt itself to the development of society and protect the parties reasoned expectations, eventhough there is no formal contract between them. From the general arguments, three more specific points can be derived. First, the proximity or closeness of the relationship between the subcontractor and the injured party seems to be essential when considering direct liability. The most important factor turns out to be whether the subcontractor has foreseen the damages that the faultiness of his performance will inflict on the end user. Second, there does not seem to be any real need for direct liability insofar as the injured party has the chance to recover his damages from his immediate contracting party. Third, the material content of direct liability must be closely bound to the content of the two contractual relationships in a contractual chain. Both the subcontractor and the injured party have, as a rule, the right to invoke norms that are in force in either of the two contractual relationships.
  • Könkkölä, Justus (Talentum, 2009)
    Liability insurance in claims disputes 1. Object of the Study Liability insurances have a central role in the control of damage and liability. Among other things, liability insurances have an effect on the cover of those suffering the damage, compensation norms and compensation practices. The liability for damages is also of special nature as an insurance risk, since it requires the acknowledgement of a normative legal relationship, i.e. liability for compensation. The developmental span of an insured event can be remarkably long and extend from the act which caused the damage to the res judicata award of damages. Despite the significance and the special nature of liability insurances, it has not been the subject of actual insurance law studies published in Finland. The purpose of this study is, for its own part, to make up for this deficiency. In particular, the study focuses on problems during the stage of filing insurance claims. The study investigates the relationship of the insurer and the insured from three different thematic perspectives, these being: 1) the legal repercussions and requirements of an insurer s claims settlement decision, 2) the insurer s right to control the insured event and 3) the distribution of expenses between the insurer and the insured. Each of these segments is divided into several individual legal questions, of which interpretational recommendations will be made. These more particularised questions will also be subjected to evaluations on how well the Finnish Insurance Contracts Act (ICA) accounts for the special characteristics of general liability insurances and how the established terms and conditions of insurance policies relate to the said Act s provisions. In spite of the focus on general liability insurance, this approach enables the evaluation of several questions of a general significance with regard to insurance law. The status of the damaged party will mainly be looked at only from the perspective of the mutual relationship between the insurer and the insured. The study s scope encompasses both corporate and consumer insurances. It will also take note of the terms and conditions prevalent in the industry and propose interpretational recommendations thereof. The following consists of a markedly simplified summary of this investigation s results. 2. An Insurance Company s Decision-making When deciding upon the payment of insurance compensation against liability insurance, the insurer usually has three options. It can either deny its liability for compensation based on the policy s limitation on liability, approve the claim and pay the settlement, or acknowledge the alleged liability of the insured to fall within the scope of the policy s coverage but deny liability for compensation on the grounds that the insured is not liable for damages. In the latter case, the insurer according to the terms and conditions of the policy is usually obligated to initiate investigations to clarify the insured s liability for damages. The decision-making of the insurer involves a number of issues with legal import, which are discussed in chapter 3. Pursuant to the provisions of section 70 of the Insurance Contracts Act, the insurer is obligated to initiate activities on behalf of the insured. The period of time is calculated on the basis of obtaining the clarification concerning the liability, meaning that settling the claims on behalf of the insured first is not required. The burden of proof is divided according to conventional compensation debt relations so that it is the obligation of the insured to prove that a liability for compensating a third party has arisen, and the obligation of the insurer to prove the grounds for limited liability possibly applicable to the case. In reality, the actual burden of proof concerning the insured s liability for damages in general liability insurances is usually borne by the party claiming damages. From the perspective of the insurer s and the insured's mutual relation, however, the burden of proof rests with the insured. The insurer despite the limitation on liability referred to in section 9 (2) of the Insurance Contracts Act can be found to be liable to compensate the damage, provided that the insured will be granted with a sufficient degree of trust regarding the settlement of claims. An effect of this kind may occur as a result of, e.g. the insurer s continued defence of the insured against the claim for damages while being aware of a limitation-of-liability factor possibly applicable to the case. The insurer is entitled to recover a compensation already paid only in exceptional cases. On the other hand, should such an entitlement arise, the insurer may not only be entitled to recover the actual compensation paid but the costs incurred in the insured s defence, regardless of whether the insurer s liability for costs was originally based on the provision concerning salvage costs as set forth in the Insurance Contracts Act (section 61) or the terms and conditions of the policy. The option of recovery may also arise as a consequence of the insured being found liable to compensate the insurer with the settlement which the latter has had to pay to the party claiming damages without cause. However, the usual prerequisite for recovery is that the insured has provided the insurer with misleading or incorrect information. In principle, the party suffering the damage is not liable to restore the compensation paid solely on the basis of an insurance coverage s inapplicability if the damaged party has been found to be entitled to the damages in the first place. 3. An Insurance Company s Right to Control an Insured Event A liability for compensation may arise through the long-term development of an insured event. This places emphasis on the insurer s need and its possibilities to participate in the control of an insured event in various ways. In practice, the insurer is always entitled to negotiate the compensation with the party claiming damages on the basis of the terms and conditions of the insurance and to take care of the legal proceedings on behalf of the insured. Nonetheless, an insurer s right to control the development of the insured event is often, all things considered, dependent on the interpretation of the norms of insurance law and, on an even wider scale, the definition of the relationship between the insurer and the insured. The purpose of chapter 4 is to evaluate issues relating to this. The problems surfacing in the chapter may have limited significance in connection with other types of insurance, in which the insurer is capable due to the development of the insurance risk of participating in the control of the insured event, in one way or another. The insured always has the ultimate right to decide its own status in a claims matter. The insurer, however, is, regardless of the terms and conditions of the policy, entitled to act on the insured s behalf without limitations even when the insured would be opposed to this, provided that the appropriate handling of the claims issue so demands. In accordance with section 32 of the Insurance Contracts Act, the insurer is entitled to give precautionary guidelines on how to prevent insured events. Should the insured not comply with such guidelines and the damage consequentially expand in scale, the insured will, as a rule, lose its right to compensation. However, in order to be considered binding, the insurer s guidelines must, in addition to being pertinent to the prevention of insured events, also be reasonably predictable as to their outcome. The commitment undertaken by the insurer on behalf of the insured and concerning the grounds for, or the amount of, compensation does not bind the insured, even to the extent of the deductible. Instead, in accordance with Finnish legal praxis (the Supreme Court 1990:12), the insured, with certain preconditions fulfilled, can become bound to a commitment concerning the insurer s procedures (the aforementioned ruling involved an extension of the time limit for the tort claim). According to typical insurance terms and conditions, the insurer is entitled to abandon further clarifications on a matter if it can come to agreement on the amount of compensation to be paid with the party suffering the damage, but the insured refuses to accept the settlement. Such terms and conditions also mean that the insurer s aggregate financial liability will be given a maximum limit. What these terms and conditions do not limit, however, is the insurer s liability in case the claim of the third party is clearly unjustified. The insurer nevertheless retains quite an extensive right, starting from the financial encumbrance brought on by legal proceedings, to make decisions as to the risks of litigation also in cases in which there is no certainty that the entered defence would be successful. The insurer s right to control the insured event requires that it receive information of the impending event at a sufficiently early time. However, section 73 of the Insurance Contracts Act does not stipulate that a claim be filed until a year from when the party entitled to compensation has become aware of such a right. The precise time of the commencement of the said period has been unclear with respect to liability insurance. This study recommends based on, inter alia, the judicial practice of the Insurance Complaints Board that the time be calculated from when the insured has become or should have become aware of its possible liability. The terms and conditions of general liability insurances which in practice require a more rapid notice than this are null and void when the Insurance Contracts Act is applied to them as statutory regulation. The terms and conditions determining the procedures of liability insurances, when considering their ultimate purpose, have to be viewed as the precautionary instructions referred to in section 31 of the Insurance Contracts Act. This also means that the insurer may decrease the compensation on the basis of the insured having neglected an obligation pursuant to these terms and conditions only if such negligence has caused damage. The insurer s right to represent the insured in an insurance compensation dispute may yield should the interests of the insurer and the insured be in clear conflict in the procedure. This can take place when, e.g. the insurer is also the claimant (due to, for instance, its right of recourse) or when the success of the claim demands circumstances which simultaneously translate into the application of the limitation of insurance coverage. Furthermore, a conflict of interest may be the consequence of, e.g. the insured having been the subject of other claims as well, the response to which is largely of no consequence or interest to the insurer. 4. The Distribution of Costs Defence against liability claims may result in substantial costs. Moreover, the usefulness of the costs is uncertain if the outcome of the claim is difficult to predict beforehand. Chapter 5 deals with questions relating to this. In particular, attention is given to the duty of salvage of the insured (section 32 of the Insurance Coverage Act) and the related norms concerning the insurer s liability for costs (section 61 of the said Act). As a starting point, the insured s right to receive compensation against salvage costs pursuant to section 61 of the Insurance Contracts Act includes a right to be compensated for legal expenses. According to the legal praxis, the insured s right to compensation also includes such costs which -- when interpreted in the narrowest sense no longer have an effect on the prevention of liability risks, but which are nonetheless naturally connected to the action that removed the liability risk (Supreme Court 1997:51, which concerned costs incurred by the removal of contaminated soil). According to this, compensation is likely to include, for example, the legal costs of the counterparty. Based on the opinion presented in this study, the insured is entitled to full compensation even when the costs benefit responses other than merely the response provided to the grounds concerning the claim. As a principle, the insurer is liable only to the extent of the insured amount. However, according to section 61 of the Insurance Contracts Act, the insurer is responsible for salvage costs exceeding the insured amount. In corporate insurance, the insured amount usually also figures in the costs incurred in the defence against claims. The study proposes that the insurer also carry liability for such excesses of the insured amount which are the result of risk assumption where the insurer has been the sole beneficiary. A situation of the kind may surface, e.g. when the insurer upon exercising its decision-making powers in accordance with the terms and conditions of the insurance contract disputes a draft settlement of the counterparty that has been within the limits of the insured amount, due to which the insured amount is exceeded in the resulting legal proceedings. The liability of the insurer includes the excess of insured amounts resulting from both the extension of a claim and legal expenses. 5. Finally In the context of the Insurance Contracts Act, general liability insurances have been observed largely by regulating the status of the damaged party. From the perspective of the questions studied, however, it can be noted that many issues having an impact on the liability of the insurer and the insured are significant in various ways and that they also have a bearing on the status of the damaged party. In fact, it is a result of the insurance practice that the settings of the claims-phase are often very similar, regardless of whether the procedure is based on a notice filed by the insured itself or on a claim against the insurer filed directly by the damaged party, as set forth in sections 67 or 68 of the Insurance Contracts Act. The Insurance Contracts Act does not contain provisions on all the issues significant from the point of view of general liability insurances. Even to the extent that the Insurance Contracts Act offers a solution to a particular question, the provisions have clearly not been drawn up with situations typical to liability insurances in mind. However, this may not lead to serious problems if the systematics of the Insurance Contracts Act provides sufficient room for insurance type specific interpretations. Some exceptions notwithstanding, the Insurance Contracts Act fulfils this requirement. On the other hand, reasonable interpretations demand that the claim, as an insured event, not be tied down to a single criterion or moment, but that the characteristics of an insurance risk are evaluated separately through the perspective of each norm s objective. Typical insurance terms and conditions largely follow the provisions of the Insurance Contracts Act. However, the terms and conditions pertaining to statutory notifications concerning the insured event may lead to the insured s obligation to disclose arising too rapidly from the perspective of the Insurance Contracts Act. The fundamental problem herein, however, lies rather in the law than in the terms and conditions of insurance contracts, of which the premises are largely understandable.