The Concrete Legal Material — A Finnish Example

  • Thomas Wilhelmsson
Part of the Law and Philosophy Library book series (LAPS, volume 16)


A concept that is central to the model of alternative legal dogmatics proffered here is symptomatic criticism. Alternatives are developed on the basis of a kind of “legal induction” from those elements in the concrete legal material that express a new and desirable legal thinking. In this chapter symptoms of a person-related need-orientation in Finnish law are presented.


Contractual Relationship Legal Practice Chapter Versus Full Compensation General Clause 
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  1. 1.
    See Child Maintenance Act sec. 1–2 and Marriage Act sec. 48 (as amended 411/87).Google Scholar
  2. 2.
    Cf. Unger 1983 p. 618 ff. who constructs one of the counter-principles to freedom of contract, viz. community, on the basis of, inter alla, the regulation of family relations.Google Scholar
  3. 3.
    See especially Kangas 1982.Google Scholar
  4. 4.
    See for more detail the need-oriented rules of the Code of Inheritance, Ch. 8, sec. 1–4, 6.Google Scholar
  5. 6.
    Here the legal distinction between renting an apartment and renting commercial premises is referred to. Dauner-Lieb 1983 p. 50.Google Scholar
  6. 10.
    See as an example taken at random the case HD 1972 II 82: as a result of a traffic accident, a person’s mobility had been impaired to such a degree that he was unable to manage his former occupation. As he was, in view of his age, no longer able to obtain suitable work in his home area and had thus lost his possibilities of income, he was awarded a full invalidity pension from his traffic insurance, even though his degree of invalidity was medically defined as less than 100%.Google Scholar
  7. 12.
    Kangas 1982 p. 242 f. even considers that the preconditions for compensation and maintenance respectively are basically the same.Google Scholar
  8. 13.
    See Ch. 9, sec. 3 of the Criminal Code of 1889.Google Scholar
  9. 14.
    See Kivivuori 1969 p. 242 ff.Google Scholar
  10. 15.
    Reg.prop. 187/1973 p. 13.Google Scholar
  11. 19.
    As an illustrative example reference can be made to HD 1981 II 102, where, as an argument for adjustment, reference was made expressly to the tortfeasor’s lack of means and small income as an argument for reducing the relatively small amount of FIM 11,572.77 (about USD 3,000) to FIM 4,000. In favour of the adjustment was obviously the fact in this case that the other party was an insurance company which exercized its right of subrogation. The case is a good example of adjustment based on a tortfeasor’s economic circumstances insofar as there could hardly be a question of adjustment on the grounds of low degree of fault: the tortfeasor was guilty of drunken driving.Google Scholar
  12. 20.
    See Bengtsson 1982 p. 261.Google Scholar
  13. 21.
    In the travaux préparatoires to the corresponding adjustment rule in Sweden it is expressly stated that it may be considered unreasonable to compel the liable person to sell an ordinary residence or an agricultural holding he has long occupied and farmed: Sv.Prop. 1975:12 p. 177.Google Scholar
  14. 22.
    Thus Bengtsson 1982 p. 257, Saxén 1975 p. 163.Google Scholar
  15. 23.
    An illustrative example is Supreme Court case HD 1979 II 14, in which the creditor had four children. A small amount of damages was here adjusted with express reference to the tortfeasor’s small income and his maintenance obligation. In this case, too, the creditor was an insurance company; nor could the adjustment be justified with reference to theGoogle Scholar
  16. 24.
    Reg.prop. 187/1973 p. 19.Google Scholar
  17. 25.
    See also HD 1985 II 23, where the compensation was adjusted in favour of a housing company.Google Scholar
  18. 26.
    See for more detail the travaux préparatoires in Reg.prop. 205/1983 p. 21 and Reg.prop. 57/1985 p. 25, respectively. In 1991 the Act on Procedure for Termination of Contracts of Employment has been substituted by a chapter on this subject in the Labour Contracts Act. The provision on indemnification in the new chapter (art. 47 f) contains a reference to the employer’s position, too.Google Scholar
  19. 27.
    Bengtsson 1982 p. 260 f.Google Scholar
  20. 28.
    Reg.prop. 205/1983 p. 21.Google Scholar
  21. 29. 1965:A4 p. 38.Google Scholar
  22. 30.
    See e.g. the Confederation’s statement to the Ministry of Justice, 7.11.1972 p. 9.Google Scholar
  23. 31.
    Reg.prop. 187/1973 p. 21.Google Scholar
  24. 32.
    From legal practice one case may be particularly mentioned in which a temporary worker (a student of theology) in the Tampere Evangelical-Lutheran parishes had caused damage valued at FIM 4,008 (approx. USD 1,040), which relatively insignificant amount was reduced to FIM 2,000 (HD 1981 II 54).Google Scholar
  25. 33.
    Reg.prop. 187/1983 p. 14.Google Scholar
  26. 34.
    Reference may be made here to HD 1978 II 149, where the amount of compensation was reduced from FIM 13,208.75 to FIM 3,000.-, HD 1981 II 124, where FIM 6,000.- + FIM 750.- /month was reduced to FIM 3,000,- + FIM 250,- /month, and HD 1982 II 140, where FIM 15,490.- was reduced to FIM 7,745.- (FIM 1,000 = approx. USD 230–270 during this period). These cases are also good examples of a reduction of liability for financial reasons, insofar as the tortfeasor’s guilt in all these cases was relatively large (in all three cases the tortfeasor received a penal sentence) and the degree of fault could thus hardly be adduced in favour of a mild decision.Google Scholar
  27. 35.
    Such ways of thinking obviously underly a relatively recent decision in which the significance of the parties’ economic circumstances was explicitly discussed. In this case (HD 1984 II 93), two seven-year-old children playing with matches had lighted a fire which caused damage valued at about FIM 250,000. One of the children had no assets of his own while the other owned a share in his father’s estate, which consisted of a plot of land cultivated by his family. The damage had not unduly worsened the injured party’s possibilities of subsistence or other circumstances. On these grounds, and with regard to the children’s age and development, they were ordered jointly to pay compensation for the damage to an amount of FIM 20,000. The share of one of the tortfeasors in the plot of land cultivated by his family was consequently not adjudged a ground for increasing his liability.Google Scholar
  28. 36.
    Reg.prop. 187/1973 p. 13.Google Scholar
  29. 37.
    Thus also e.g. Hellner 1985 p. 326.Google Scholar
  30. 39.
    In the discretionary assessment to be made when liability is imposed on a child, it is natural to adduce such non-needs as arguments for reduction. A good example is case HD 1984 II 93 (see note 35 above) where a large reduction - for fire damage of FIM 250,000 (approx. USD 43,000) FIM 20,000 was fixed as damages - was justified with, inter alia, the argument that the damage had not unreasonably impaired the injured party’s subsistence possibilities or other circumstances. The well-to-do injured party has to bear a large reduction.Google Scholar
  31. 40.
    See e.g HD 1978 II 149, HD 1979 II 14, HD 1980 II 50, HD 1980 II 64, HD 1981 II 102 and HD 1982 II 140. In HD 1989:70 the court, however, expressly maintained that the existence of insurance and the property status of the insurance company cannot alone (without other supporting arguments) constitute grounds for adjustment of damages.Google Scholar
  32. 43.
    See as examples of different views in the doctrine Godenhielm 1975 and Saxén 1983 p. 383.Google Scholar
  33. 44.
    See HD 1985 II 51, where compensation to be granted a builder in consequence of breach of contract by the designer of a factory unit was adjusted. The town court, whose justification in this part was upheld by the Supreme Court, adjusted the compensation, taking into account the designer’s fee for the commission (FIM 8,000), compared with the amount of the damage (the court put this at FIM 150,000), the plaint’s and the defendant’s economic circumstances and the absence of malicious intent. - In the doctrine, adjustment of contractual liability for reasons of parties’ economic circumstances has earlier been advocated by Godenhielm 1975 p. 410 f., who maintains that small workshops and entrepreneurs should be protected from claims for damages that would hit them too hard.Google Scholar
  34. 45.
    See Aurejârvi 1988 p. 250 ff. and e.g. HD 1972 I 1, 1983 II 174 and 1986 II 126.Google Scholar
  35. 46.
    HD 1972 I 1: the repayment claim amounted to FIM 2,228.89. The same line is followed in HD 1978 II 133 and 1979 II 55. The principle expounded in the case has since been developed in sec. 12 of the Child Maintenance Act.Google Scholar
  36. 47.
    See Aurejârvi 1988 p. 252, and also the earlier Hakulinen 1962 p. 390.Google Scholar
  37. 48.
    See in particular HD 1983 II 174. In this case a state employer had for more than four years paid unjustified travel expenses and a daily allowance to a person in its employ. It had not been shown that the employee had supplied incorrect details of where he had stayed during this time. He had even, with regard to the payment period and the fact that the provisions on the grounds for payment of travel expenses and daily allowance gave scope for interpretation, been able to rely on the employer’s having in due order examined the grounds and its obligation to pay travel expenses and daily allowances. For these reasons, and with regard to the employee’s economic standing, it was considered reasonable for the employee to repay only a portion (FIM 10,000) of the unjust enrichment (totally FIM 39,205.90, i.e. about USD 7,400) that he had received. In a similar case before the Helsinki Court of Appeal (11.12.1985/751), clearly in observance of the Supreme Court decision, the Court adjusted a claim for repayment of remuneration for evening and Sunday work.Google Scholar
  38. 50.
    See e.g. Hakulinen 1962 p. 75, who stresses that a debtor, regardless of subjective guilt, is, where his obligation is not fulfilled within the appointed time, obliged to compensate his creditor for the damage caused by his inadequate financial ability to perform; and Taxell 1972 p. 118 who similarly maintains that a debtor himself carries the risk of not having financial resources to fulfil contracts entered into, and that the reason for his lacking financial resources has not been accorded significance.Google Scholar
  39. 51.
    See for more detail Wilhelmsson 1990. See now also Bârlund 1990, who shows that in Denmark there has been obvious restraint in this area.Google Scholar
  40. 52.
    See KM 1977:30, sec. 13 and 011 8/1982, sec. 20.Google Scholar
  41. 57.
    See OU 9/1988, Ch. 5, sec. 21 and Ch. 8, sec. 24.Google Scholar
  42. 58.
    See KM 1989:47, Ch. 4, sec. 34 and Ch. 6, sec. 24.Google Scholar
  43. 59.
    The payment difficulties need not be so dire that one may speak of inability to pay. In the travaux préparatoires to the Act on Interest it is clearly stressed that adjustment may take place as soon as payment cannot be effected in time without jeopardising the debtor’s reasonable housing and other living conditions. See Reg.prop. 109/1981 p. 23.Google Scholar
  44. 60.
    See e.g. SOU 1985:11 p. 182 and OU 16/1985 p. 212 f.Google Scholar
  45. 61.
    See e.g. Eklund - Nordström 1957 p. 111 and SOU 1985:11 p. 182.Google Scholar
  46. 62.
    See e.g. Hakulinen - Raninen 1968 p. 80 and OU 16/1985 p. 212.Google Scholar
  47. 63.
    Various examples may be found of causes of a debtor’s costs rising so that he gets into payment difficulties. SOU 1985:11 p. 182 mentions the debtor’s divorce, which naturally, because of increased living costs, can radically worsen his ability to pay, while Hakulinen - Raninen 1968 p. 80 mention the accident of a family member, where the difficulties are a consequence of the help one feels one ought to give the person in question.Google Scholar
  48. 64.
    See e.g. OU 16/1985 p. 212. In the travaux préparatoires to the consumer credit legislation the only circumstance considered is whether the debtor was “aware” that the obstacle would arise. See Reg.prop. 88/1985 p. 32.Google Scholar
  49. 65.
    See on this development e.g. Aro 1974.Google Scholar
  50. 67.
    See in the travaux préparatoires e.g. Reg.prop. 247/1981 p. 3. See e.g. Reg.prop. 247/1981 p. 14.Google Scholar
  51. 69.
    See KM 1957:8 p. 25 which, as an example of the type of situation the proposed adjustment rule is to cover, mentions that a contract term that forbids a tenant to keep a dog in the rented apartment shall not apply if the tenant becomes blind during the tenancy.Google Scholar
  52. 72.
    Helsinki Court of Appeal 29.6.1977/81.Google Scholar
  53. 73.
    HD 1984 I 1. Also in HD 1985 II 171 the Court adjusted an agreed compensation liability with reference inter alia to the debtor’s economic situation. Google Scholar
  54. 75.
    Consumer Ombudsman 84/40/3689. As other similar decisions may be mentioned Consumer Ombudsman 80/42/440 and 82/40/1166.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

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