Fullmaktslärans ofullkomlighet - Om problemen kring elektroniska fullmakters giltighet och återkallelse

Sammanfattning: Society is becoming increasingly digitalised, which entails a growing demand for electronic tools and assistance in everyday life and business. Powers of attorney are tools that were previously exclusively oral or physical, but can now also be issued in electronic form. Electronic powers of attorney are also believed to become increasingly common in the future. However, there exist no comprehensive assessment of electronic powers of attorney amongst court cases or in the legal doctrine. Therefore, the aim of the thesis is to map, systematise and analyse the Swedish institute of authority’s applicability on electronic powers of attorney. To achieve the thesis’ aim, several research questions have been formulated. In summary, the research questions address to what extent electronic powers of attorney are valid and can be revoked according with the institute of authority. The thesis’ research questions also address to what extent the blockchain technology have a significance for the validity and revocability of electronic written powers of attorney. A legal dogmatic method is used to achieve the thesis’ aim and to answer the research questions. Despite limited studies in the legal doctrine, it can be concluded that electronic powers of attorney in general are valid since there, as a general rule, are no form requirements prescribed by law for the validity of a power of attorney. Therefore, powers of attorney can be created and mandate given through means such as emails to the third party, publications on websites, and electronic written powers of attorney. However, powers of attorney regarding the transfer of ownership of real property are subject to a written form requirement. There is some support in the travaux préparatoires and the legal doctrine that the validity of powers of attorney regarding the transfer of ownership of real property also requires the principal’s signature. It is argued in the thesis that the principal’s signature is required, and that a physical signature is necessary to meet the requirement. Therefore, it is concluded that electronic powers of attorney are valid if they do not concern a transfer of ownership of real property. Furthermore, it is argued in the thesis that electronic powers of attorney can be revoked both through the Contract Act’s provisions that regulate revocation and through an effective neutralisation of the circumstances that gives the third party reason to believe that a power of attorney exists. It is concluded that most types of electronic powers of attorney may be revoked through communicating the revocation in the same manner as the power of attorney was communicated. However, it is argued in the thesis that revocation of electronic written powers of attorney are not practically possible in many situations. In such cases, the principal’s only option is to declare the electronic written power of attorney void. It is argued in the thesis that such a procedure alone is insufficient to safeguard the principal’s interests. Therefore, several potential changes in the legislation, that could guarantee the possibility to revoke electronic written powers of attorney, are proposed in the thesis. In the thesis’ conclusion, the function and significance of blockchain technology for electronic written powers of attorney are discussed. Blockchain technology can be used to, for instance, create a representation of an electronic written power of attorney in a blockchain. The representation can be transferred between different natural and legal persons. It is argued that an electronic written power of attorney could potentially be revoked using blockchain technology if the principal regains ownership of the representation. However, there is limited legal discussion in Sweden regarding the legal significance of blockchain technology. Therefore, it is pointed out in the thesis that there are several opportunities for further studies of the legal implications of blockchain technology.