Urakkasopimussuhteiden ongelmakohdat ja funktionaalinen sopimusteoria niiden ymmärtämisessä
Avainsanat:
sopimus, sopimusoikeus, funktionaalinen sopiminen, urakkasopimusAbstrakti
Problems in contractual relationships in the construction sector and functional contract theory
The article aims at recognising problems arising in contractual relationships between enterprises in the construction sector, by identifying the most common types of dispute between the parties and their underlying, recurring factors. Moreover, the article looks into whether these problems can be understood and prevented by the application of functional contract theory. The starting point is that a traditional contract model, stating the parties’ rights and obligations, is not necessarily the best conceivable way of forming a contractual relationship in the complex context of the construction sector.
The author looks at the problems appearing in the praxis of Finnish Courts of Appeal in 2014–2018. The construction sector seems to be affected by a contracting culture in which oral agreements and deviations from the agreed contract terms are relatively common. A contract is seen as an instrument that diverges from practice and has little weight in execution. This contracting culture has been an underlying factor in numerous conflicts.
The author finds that the construction sector needs contracting practices that advance the practical execution of a project. Functional contract theory, which looks at contracts as business management tools, seems to offer one basis for the development of construction contracts. Deliberate introduction of new functional elements to contracts and improvement of existing ones, as well as the development of contracts into management tools, could reduce the need to deviate from agreed terms and increase the weight of contracts throughout the construction project. When formulating contracts, it is essential to concentrate on drafting effective, project-specific terms. However, this increases the costs of construction projects. In addition, the prevailing construction contract model limits the wider use of functional contracting in Finland. On the other hand, better resourcing of the contract process and examination of contracts from the point of view of their distinct functions could improve the quality of contracts and thereby prevent conflicts between the parties.
