Sweden and Finland

I. In Sweden, Dieter will certainly recover his loss. The situation in Finland is more uncertain.

II. In Sweden, Dieter would have a claim against Credit, Inc. since the activity of credit rating is presently regulated by the Act on Credit Information 19731068 which imposes strict liability (in the form of reversed burden of proof) on the professionals involved, who can avoid it only by showing that they have used the ‘required care and attention’. Facts such as those described in the example would certainly suggest the liability of Credit, Inc.

In Finland there was no corresponding statutory provision until 1999, and liability was then very doubtful, since it was submitted to the general limitation to the compensation of ‘pure economic loss’ (in the Swedish/Finnish meaning of the term, i.e. economic loss arising without connection with anybody suffering personal injury or damage to things) provided in SkadestL 5:1, which establishes that when such damage is not caused by a criminal action it can be recovered only if there are ‘special reasons’. The Act on Personal Information 1999 includes provisions establishing liability for credit rating,1069 but it could be argued that these apply to Dieter only as a private person and not when he acts within the framework of a commercial activity.

Editors’ comparative comments

Providers of intellectual services do so ordinarily on the basis of a contract. If the client is disappointed with the quality of the service and a financial loss is arguably attributable to the service as rendered, the client may have a cause of action for breach of contract. Sometimes, however, a person other than the client claims to have suffered a loss as a consequence of poorly and negligently rendered intellectual services. Can such a third party recover in a negligence action? This is – as it was in Cases 14 (‘Poor Legal Services’) and 17 (‘Auditor’s Liability’) – the issue at stake.

The crucial test to be satisfied in any legal system is, substantially, whether the defendant supplied information for the guidance of others in their business conduct, and whether the plaintiff belongs to a group of persons which the defendant knew would be affected by the same information. An affirmative answer to both these questions suffices for

1068 Kredituplyssningslagen (1973: 1173), at § 21.

1069 Personuppgiftslag 22.4.1999/523 §§ 20–, 1, 47.

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most legal systems to allow recovery of the plaintiff’s loss, and even for those of England and Scotland not to deny compensation as a matter of principle – despite the unsteady finding, under the circumstances of the case, of a ‘close proximity’ and of a ‘direct assumption of responsibility’.

Indeed, to be stressed in this case is the quantitative exposure of the defendant to a defined number of plaintiffs, or better, a single plaintiff. The danger of unbounded financial repercussion is avoided. The total liability can be calculated in advance, because the plaintiff’s interests can be distinctly contemplated by the defendant at close range. The class of claimants is thereby limited, as if – to put it in common law terms – an invisible privity paradigm structured the resulting bond in tort.1070 This is why, if we were prognostic comparativists, we would infer that England and Scotland will not delay for very long their enrolment in the liability club in the circumstances of this case.

As mentioned earlier,1071 there is no doubt that in this field the large majority of national solutions which award plaintiffs with damages are using legal devices as a means to encourage the maintenance of a high standard of services, with a view to preventing the collapse of that service industry as a whole.

From this perspective, one might regard as merely theoretical the debate on whether a given legal system, or a future European code, should ground liability on general rules, such as the duty to inform correctly,1072 on general standards such as good faith, or on specific norms which protect the given right (as happens in the Greek and Portuguese legal systems with their reference to personality rights); or whether it should shift the key focus of the decision to the blameworthiness of the information giver’s behaviour (which is implied in Austria and the Netherlands).

1070 See E. K. Banakas, ‘Liability for Incorrect Financial Information: Theory and Practice in a General Clause System and in a Protected Interests System’, (1999) 7 European Review of Private Law 261, 270–2; J. M. Thomson Delictual Liability (Butterworths, Edinburgh, 1994), p. 59.

1071 See our Comments under Cases 14 (‘Poor Legal Services’) and 17 (‘Auditor’s Liability’). 1072 Bearing in mind both the problematic position currently taken by English and

Scottish law and the entrepreneurial activity of the plaintiff in this hypothetical case, it is worth recalling Jane Stapleton’s critical appraisal of English legal outcomes. According to Stapleton, ‘In the case of pure economic loss courts do now seem to conclude that the concern about free-riding outweighs the concern to ensure the defendant is deterred, so that commercial plaintiffs who had such alternative opportunities to deter the defendant are left to use them and are denied the assistance of tort . . . In contrast, consumers who face inflexible standard terms and who are therefore in no danger of being encouraged by the award of a tort entitlement to change their bargaining stance . . . may receive support from tort’,

J. Stapleton, ‘Tort, Insurance and Ideology’, (1995) Mod. LR 820, 840.

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