Pactum turpe - En kritik av processhindrets roll och funktion i svensk processrätt

Sammanfattning: Pactum turpe is a Swedish legal principle concerning the question of contracts in violation of law or good customs. The principle is comprised of two parts, one being a contract law-based rule of invalidity, the other being a procedural barrier against access to court. The underlying rationale for the existence of the principle is that the legal system needs to be able to distinguish contracts in violation of law or good customs in order to avoid that the immoral nature of such contracts taint the legal system. The application of the principle as a procedural barrier precludes an individual from an access to court concerning a claim based on a pactum turpe. While the application of pactum turpe as a procedural bar constitutes a serious restriction on an individual's access to court, the conditions necessary for such an application are highly uncertain. The dismissal of a claim before the court on the grounds that it is based on a contract in violation of good customs necessitates the court to ascertain the substantive content of such customs. The appropriateness of a court independently determining moral principles and subsequently employing them in restricting applications of the law is questionable.