Försträckning eller gåva? – En kritisk granskning av NJA 2014 s. 364 och dess tillämpning i underrätterna

Sammanfattning: The traditional view in Swedish law is that a creditor who requires repayment from a debtor based on an alleged loan must prove that a loan agreement has been concluded between the parties. However, throughout the Swedish Supreme Court case NJA 2014 p. 364, this starting point has partly been waived. In the case, an amount corresponding to the disputed amount was transferred from the claimant to the respondent. The claimant alleged that the transfer was based on a loan. The respondent alleged that the transfer constituted a gift. No evidence of the underlying agreement was available. The outcome of the case was dependent on whom the court considered had the burden of proof. This question was in turn dependent on how the court chose to look at the applicable civil law rule. Seen as a rule with two necessary conditions, a transfer of money and an agreement, the claimant would have to prove the existence of both conditions to become successful with its claim. However, if the civil law rule would to be regarded as only existing of one necessary condition, a transfer of money, the claimants statement “gift” would become the matter in issue. Hence, to avoid having to repay the transferred money, the respondent would have to prove that the transfer was in fact a gift. If the underlying agreement constitutes a necessary condition for a right to repayment, the Supreme Court through the precedent appears to have created a presumption in the meaning that if a transfer from A to B is proved, a loan agreement is presumed to exist between the parties. Hence, to avoid repayment, the respondent must prove the non-existence of the agreement. An alternative interpretation of the decision is based on the view of the applicable rule, where the only necessary condition for repayments is a transfer of money. Seen in this way, the claimant has a right to repayment as soon as the transfer is proven, and the respondent must prove a right to keep the money to avoid repayment. If this interpretation of the case is accepted, NJA 2014 p. 364 can be considered for the fact that Swedish civil law contains a principle meaning that a recipient of a money transfer must be able to prove his right to retain the money, in order avoid having to repay the money. After the verdict of 2014, many decisions from the lower courts have been issued, concerning identical or similar evidence-based situations. This thesis illustrates how the 2014 case contributed to an unpredictable legal situation. The interpretation of the precedent by the lower courts shifts and it appears unclear which circumstances that are relevant in deciding the burden of proof. Furthermore, the meaning of the underlying civil law rule is unclear and consequently it is unclear which of the parties that must prove the meaning of the underlying agreement. Furthermore, regardless of what interpretation of the case that is assumed, it seems unjustified to abandon the traditional scheme in which the claimant must prove both the transfer and the loan agreement. Perhaps for that reason, the interpretation of the 2014 case by the lower courts shifts. The problem is obvious and the procedural safeguards are not maintained.