Förfogandeförbudets framtid. Förutsättningar för, och eventuella konsekvenser av, ett avskaffande av kravet på förfogandeförbud vid användning av återtagandeförbehåll.
Sammanfattning: In order for a retention of title clause (ROT-clause) to be valid against third parties underSwedish law, the debtor must be prohibited to dispose of the object transferred. Forinstance, the debtor must not be allowed to resell the object without the creditor’spermission or before the object has been fully paid. If the creditor gives consent to thedebtor’s disposal, he loses his right of separation. Consequently, and contrary to theregulation in most other states, the retailer can not use the payment from the resale to payfor the goods acquired. Hence, the ROT-clause becomes more or less unusable in forinstance wholesaler-retailer relations. An abolishment of the rule that invalidates retentionof title in cases where consent to disposal is given, would mean that the ROT-clausecould provide a safer and more effective method for wholesalers and other suppliers tosecure their credit and offer a better position in the case of debtor insolvency. This couldpotentially increase both credit sales and the overall competition in lending, which hasbeen on decline since the recent financial crisis. Since the Swedish regulation can beconsidered an anomaly, an abolishment of the current regulation could also promote andfacilitate international trade. A deviant regulation could otherwise have a deterring effecton foreign businesses and interfere with the principle of free movement of goods.However, several possible side effects have been mentioned in the debate on theabolishment of the rule. Also, the possibilities for an abolishment are somewhat limited,mainly because of the requirement under Swedish law of individualisation in order for thecreditor to own the right of separation. A change to the current regulation, in order toallow for the creditor to separate the object until the disposition actually takes place,should not necessarily constitute a violation of the requirement. The view that right ofseparation is sometimes possible despite consent to disposal is further supported by theSwedish Supreme Courts decision in NJA 2009 s. 79. However, doubts have been raisedover the potential for increased lending in such a regulation. A possibility could be tointroduce a registration system for security rights. The system would function as asubstitute to the requirement of individualisation and could allow for the creditor to alsoobtain security in proceeds and other substitutes of the originally transferred object. Thisway, some of the more significant arguments for the preservation of the presentregulation would become irrelevant. Furthermore, a registration system allowing morefunctional security rights and placing fewer restrictions on the parties, would be a stepcloser to an appropriate and more harmonised international regulation of security rights.
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