Mer oaktsam än grovt oaktsam? Om begreppet särskilt klandervärt vid obehöriga transaktioner enligt betaltjänstlagen

Sammanfattning: The Swedish Payment Services Act regulates the division of responsibility between the payment service provider and the consumer in case of fraud that has resulted in an unauthorized transaction. The paper examines the two most important degrees of negligence, which are found in the 5 a chapter, section 3 of the act, and compares them. These degrees are gross negligence, where the consumer is responsible up to 12 000 kr and particularly culpable, with full responsibility for the economic loss the fraud may have resulted in. The paper showsthat these two degrees of negligence share certain characteristics. The paper, however, concludes that particularly culpable behavior exhibits a higher degree of negligence and is more strongly associated with indifference, especially within the context of the act. Nevertheless, the Supreme Court has in the precedent NJA 2022 s .522 affirmed that knowledge of risk of an unauthorized transaction is not necessary for a behavior to constitute particularly culpable, as the legal history suggests. Furthermore, the paper asserts that the negligence assessment in the Payment Service Act appears to differ from the negligence assessment pertaining to the Tort Liability Act, although similarities can still be discerned. Unfortunately, the Supreme Court’s precedent leaves some questions unanswered regarding the importance of some of these traditional factors of the negligence assessment. Moreover, the paper concludes that NJA 2022 s. 522 represents a major shift in the legal position in favor of consumers. Especially regarding the situation where a consumer hands out his or her personal security credentials to an unknown person. In most of these cases the consumer, following the ruling of the Supreme Court, only is considered to have behaved with gross negligence, in contrast to before the precedent, when the same behavior was generally considered to be particularly culpable and therefore resulted in full responsibility for the consumer. Considering that particularly culpable is an unestablished concept within Swedish civil law that fits poorly into the legal system in general, the updates in legal position due to the precedent and the outdated explanations and examples in the legal history, the paper proposes that the legislator change 5 a chapter, section 3 of the act, to make the abstractly formulated grades of negligence easier to understand in its context.