Konsignation - Sakrättsligt skydd eller ogiltigt kringgåendeförsök?

Sammanfattning: Consignment is a form of trade arrangement most frequently used between suppliers and retailers. The point of the arrangement is that the supplier, the consignor, places goods with contained ownership for storage at the possession of the retailer, the consignee. The consignee then has a right to withdraw goods on credit, often in connection to the sale to a third party. The capability of the arrangement is dependent on the accordance with the law of property, meaning that the consignor has a right to separate (sw. separationsrätt) the goods in case of the bankruptcy of the consignee. The validity of the arrangement has not been clarified in case law and not dealt with in a major capacity in legal doctrine. The purpose of the thesis has been twofold. First and foremost, the current law has been clarified, i.e., if consignment is valid and in accordance with the law of property. Based on the current law, it has been argued what the current law should be like based on the criteria foreseeability, commercial need and law and economics (sw. rättsekonomi). The conclusion is that the case NJA 2009 s. 79 does give the supplier a right to separate the goods if the agreement with the retailer is considered a real consignment contract, and not a disguised credit purchase. The consignment contract is real if there is a real right to return and a not insignificant risk of return for the goods. However, the current law is not desirable based on the judgement criteria of the essay. The foreseeability is insufficient since consignment has not yet been clarified in case law and since it is very difficult to determine the risk of return beforehand. The lacking foreseeability plays a big part in that the current law does not match the commercial need. Swedish retailers might be disadvantaged by the fact that a majority of European legal systems accept valid reservation of ownerships with a permission for the buyer to dispose over the goods before payment is made while Sweden does not, which is the rule that consignment tries to circumvent. The current is not desirable from a law and economics point of view either, since legal representatives, bankruptcy trustees and courts have to spend considerable resources to construct and examine the validity of consignment contracts and other circumventing constructions. This ineffective use of resources could be avoided. A better solution would be to abolish the rule of disposal for a valid reservation of ownership, which is the root to the flaws of the current law. Consignment and similar arrangements would not have to exist without this rule. The foreseeability would benefit from a clarified current law where suppliers could be certain of their right to separate and where there would be no need of complicated judgements of demarcations. It would fit the commercial need more and promoted the free exchange of goods with an adaption to the rest of Europe. From a law and economics point of view the change would be favorable since resources no longer had to be spent on constructing and examining circumventing constructions.