Konsumentköplagens tillämpning på överlåtelse av hästar och en jämförelse av den skatte - och civilrättsliga betydelsen av näringsverksamhet

Sammanfattning: In Sweden the Consumer Sales Act (Konsumentköplagen 1990:932) is applied on sales of movables, when the seller is a businessman and the buyer is a consumer. The law was modified in 2002 after an EU-initiated directive - Directive on the Sales of Consumer Goods and Associated Guarantees (1999/44/EC). The directive applies to all member states in the EU and sets out the minimum level of consumer protection, which the member states are required to implement into national law. The implementation of the directive into the Consumer Sales Act modified some of the previous rules in the act and altered the balance between the buyer and the seller. One clear example of this, which is thoroughly examined in the thesis is the 20 a §. This paragraph states that - Unless proven otherwise, a defect which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the defect. The consequence for sales of horses, as with sales of all movables, is that through the incorporation of the 20 a §, the burden of proof has been reversed during the first six months after delivery. The rule creates a situation for the seller where he is bound to guarantee that the goods, i.e. the horse will not go through any changes during six months use, in spite of new conditions for the animal such as different living environment and different treatment, fodder, riding techniques, training etc. By comparing different laws created to protect consumers, interesting conclusions can be drawn. The most relevant and interesting comparison when it comes to sale of horses is between the Consumer Sales Act and the Consumer Services Act (Konsumenttjänstlagen 1985:716) These two consumer laws are constructed for the same purpose – to protect the consumer in relation to a businessman. However, the Consumer Services Act does not apply to services related to live animals (whilst the Consumer Sales Act does). The legal persons who are considered as businessmen and consumers in both acts are in fact often the same persons. The businessman selling a horse to a consumer is often the same businessman who offers services to the consumer. The difference is that when buying a horse, the consumer is protected by the Consumer Sales Act and any agreement that limits the level of protection set out in the Consumer Sales Act is null and void. When the same consumer is buying services from the same businessman he is not in the same advantageous position since services related to live animals are excluded from the Consumer Services Act. The situations regarding services related to live animals are instead regulated through specific agreements between the parties. In my opinion, the legislator can not possibly have observed this distinction between the different laws. To make an amendment to the Consumer Sales Act, where sale of live animals are excluded, does hereby not seem impracticable, but rather the logical step to take. Furthermore the preparatory motives to the Consumer Sales Act do not handle any questions regarding live animals, while the motives to the Consumer Services Act do handle the matter thoroughly. This stresses the need for this important question to be investigated and regulated further. The law that regulates the purchase or sales of horses are regulated in the same way as any sales of goods, due to the fact that horses and other living animals are regarded as movables and unascertained goods. Applying the Consumer Sales Act on live animals creates problems in a number of ways. The legal system seeks to balance the relationship between the buyer and the seller. When it comes to sale of horses this balance is pushed to far in favour of the consumer, since the seller during the first six months after a sale bears all risks for an animal that he has no control or influence over .To modify the legal system in order to restore the balance there must be an amendment to the Consumer Sales Act whereby sales of horses should be exempt from the Consumer Sales Act. Instead sales of horses should be governed by the Sale of Goods Act (Köplagen 1990:931). If the purchase of a horse is regulated by the Sale of Goods Act, then the purchase could be regulated through a standard agreement, specifically suited to the special demands attributable to the sale of Horses, which in my opinion would facilitate the sale of horses, to the benefit of both the consumer and the horse industry.