Att ha rätt och att få rätt - En rekonstruktion av rättsinstitutet pactum turpe

Sammanfattning: The purpose of this thesis is to examine the legal institute pactum turpe and the legal effects that may follow. The purpose is fulfilled by examining case law, doctrine, and a practical application of the legal institute. At the end of the thesis there is a discussion regarding problems that can occur when applying an unregulated legal institute. One definition of pactum turpe is unlawful or morally wrong agreements. Case law shows that there are four prerequisites for when a claim can be pactum turpe. 1. An agreement must be at hand. 2. The agreement must be undue. 3. The undueness must be obvious. 4. The undueness must render invalidity. The case law has shown it is not common for all the prerequisites to be fulfilled. The analysis is based on three different agreements in different “parts” of the definition of pactum turpe. The first agreement is the so called “beer agreement”, which is a lawful agreement. The second agreement is a sex purchase agreement, which is half lawful. The third agreement is an employment agreement between a company and an undocumented immigrant. The analysis shows that the first two mentioned agreements is pactum turpe, but with different legal effects. The beer agreement is partially invalid, and the sex purchase agreement should be dismissed by the court. The third agreement should not be invalid nor dismissed when the court shall decide upon salary in the context of the employment agreement. Thusly it is not pactum turpe. What morality is cannot be answered by general regulation. Nor is it obvious to invalidate or dismiss an agreement just because of it’s immoral nature. A regulation of pactum turpe should not be done without careful consideration. And although the institute is rarely applied it serves a good purpose that should not be overlooked.