Lån med elektronisk underskrift. En undersökning av bevisbördans placering vid invändning om obehörig användning - särskilt i ljuset av Högsta domstolens avgörande i NJA 2017 s. 1105.

Sammanfattning: In the court case NJA 2017 p. 1105, the Swedish Supreme Court has considered the question of the placement of the burden of proof in a situation where the holder of an advanced electronic signature objected that the signature had been used unauthorizedly by another person to sign an electronic loan commitment. The purpose of the essay is to clarify and provide an understanding of the current burden of proof rule. The purpose of the essay also includes providing an understanding of how the current burden of proof rule relates to previous practice regarding the placement of the burden of proof in the event of an objection of forgery of signature. In the court case NJA 1976 p. 667, the Swedish Supreme Court has stated that a creditor, in the event of a debtor's objection to forgery of signature relating to receipt, that the creditor should make the debtor's signature predominantly probable. The burden of proof rule has been applied in some court of appeal decisions, including in the case of an objection of forgery of signature regarding a written guarantee and promissory note. Burden of proof rules apply only to legal facts. The question regarding who has written a signature on a written proof of claim, such as a receipt or a promissory note, is not a legal fact. The starting point is therefore that a burden of proof rule should not apply to an objection of forgery of signature. One interpretation of the court decisions is that the question of the authenticity of the debtor's signature has been regarded as a presumptive fact in a presumption of proof rule and that the legal consequence has been that loan has been presumed. In the case NJA 2017 p. 1105, the Swedish Supreme Court has stated that if a holder of an advanced electronic signature raises an objection of unauthorized use of the signature, the assessment shall take place in two stages. It must first be examined whether it is the signature in question that has been used. After that, it must be examined whether it is the debtor who used the signature. Since the question of who used the electronic signature is not a legal fact, a burden of proof rule as a starting point should not be applied. One interpretation of the case is that the Supreme Court applied a presumption of evidence rule. The rule in question can be described as follows. As a first step, the creditor shall demonstrate that the technical solution used to sign the contract corresponds to the creation of an advanced electronic signature. If the creditor satisfies his burden of proof regarding that circumstance, the signature is presumed to have been created by identification with the debtor's personal code. In the next step, the debtor must make it presumed that there has been unauthorized use of the electronic signature. If the debtor satisfies his burden of proof in relation to that fact, there is deemed to be no claim relationship between the parties. If the debtor does not meet his burden of proof in relation to that fact, it is presumed that there is a claim relationship between the parties. The Swedish Supreme Court's burden of proof rule in the case NJA 2017 p. 1105 can be justified from a purpose perspective. If the creditor had the burden of proving the non-use of unauthorized use, it would likely have had a negative impact on the electronic signature system as a whole and would likely reduce the willingness of creditors to provide credit. The burden of proof rule can also be justified from the perspective of securing evidence. In the present situation, a creditor is able to secure evidence that a particular electronic signature was used to sign an electronic contract, but is unable to secure evidence of circumstances suggesting that there has been no unauthorized use of the electronic signature. It is the holder of the electronic signature who has knowledge of, among other things, which persons had access to the security code, in which places the code has been stored and other circumstances that indicate that unauthorized use occurred.