Återtagandeförbehåll – En effektiv säkerhet?

Sammanfattning: For a creditor in commercial transactions, a promise to pay is seldom sufficient. For that reason the creditor would like to secure his claim to minimise the risks arising from the contract under the credit terms. One way of securing his claim is by using retention of title clause. The thesis aims to investigate the requirements for an indefeasible protected retention of title clause, according to the Swedish legal system. Current regulation does not allow the seller a right of separation if the secured property is at the buyer’s disposal. The indefeasible protection of a retention of title clause is thereby lost if the buyer has the ability to resell, consume, processed or join property. If this happens, the property may not be withdrawn and the seller has only an unsecured claim in the buyer's bankruptcy. For an indefeasible valid retention of title clause must the following requirements be met. The parties must have agreed on the clause before the conclusion of the contract before the goods have come into the buyer´s possession. The clause may only relate to the secured claim purchase price and related links. The secured property must be a particular object, which means that generic or fungible property cannot be secured. Finally, it is only the seller who has the right to grant a credit to a potential buyer. The study also aims to investigate if a possible extension of the retention of title clause is a possible solution to the problem of international trade, from a Swedish perspective. The essay presents possible changes in the regulation of retention of title clause and what advantages and disadvantages of these would entail. Reason for this is that clauses in many European legal systems have stronger indefeasible position than Swedish regulations. Hence the foreign law only is presented in an exemplary purpose, from a Swedish perspective. The foreign law consists of the relevant extract from the Danish and German law, by reason of those countries' close relationship with Sweden. A comparative perspective will therefore not be established. The result of a comprehensive assessment provides insight of great differences that exist in the area between legal systems. The big difference is the stronger right of disposition a buyer has in foreign legal systems. The seller’s indefeasible protection is hence much broader than what is permitted by Swedish regulations. Although an extension of the retention of title clause would not be able to meet what applies in German law. In total it can be stated that the Swedish regulation is rather uncertain, in that it is only regulated in case law. Legislation should be introduced regarding retention of title clause. Even if an extended version of the clause is not to prefer, it is still considered a necessity to create conformity to nearby areas of law. The lack of clarity would thus be cured by a clear rule of law that establishes the relationship around the subject clauses. The statement by the government, which a codification of existing case law is not as much in need as before, is thereby criticized.