The doctrine of the privity of contract is a principle meaning that a contract cannot confer neither rights nor impose obligations upon anyone not part of the contract. Due to the fundamental process of freedom of contract, the par- ties may form contratcts free of restrictions, as well as themselves set the terms and conditions. This refers to the freedom to choose with whom to contract, whether to contract or not and on which terms to contract. The parties may there- fore set the terms of damages or via a disclaimer specify or delimit the scope of obligations that may be enforced by parties of the contract.

The doctrine of freedom of contract is, however, not without restrictions. Lex specialis legislation safeguarding, inter alia, consumer rights and consumer protection, have established certain aberrations of the privity of contract, with one being the principle of direct action. The establishment of direct action has been regarded as legitimate and desirable in instances involving, for instance, consumer rights to chose at whom they direct claims of damages, in order to protect them as a weaker party in contractual engagements. Direct action has also been established in a few other areas where it has been deemed positive from a market point of view.

Since the emergence of lex specialis establishing direct action by law, it has become more common for general courts to resolve disputes between parties of a construction contract – an area of contract law which previously more often has been resolved through arbitration. This development has meant that general courts to an increasing extent are interpreting these contracts, including the potential disclaimers.

As a result of the emergence of this alternate ground for claims of damages, together with applicable general grounds of objection to contractual provision a potential tendency of adjustment of business contracts can be distinguished by the general courts. Both nationally and internationally this trend seems more frequent, not least considering adjustment of unreasonable contract terms, section 36 of the Swedish Contracts Act.

Parts of contractual chain, although the sub-contractor might not be liable to the client per the privity of contract. The sub-contractor might feature a limitat- ion of liability clause to prevent claims from the client via direct action. The client, however, might make claims upon non-contractual damages to by-pass such limitations. In general, non-contractual damages cover property damage and not pure economic loss. It is therefore typically in the interest of the client to extend the lmitations of the definition of the property damages, a term of which largely left to the courts by the legislator to define.