Löpande skuldebrev i elektronisk form : - en ljus framtid?
Sammanfattning: In the era of digitalization, legislation formed in another time can fail to accommodate modern society’s rapidly changing practices. Negotiable debt instruments (sw. löpande skuldebrev) have traditionally been in paper form and thus the legislation surrounding it, mainly the act on instruments on debt (sw. lagen (1936:81) om skuldebrev), is based on the assumption that negotiable debt instruments exist in physical form. In line with digitalization, electronic negotiable debt instruments have emerged on the market which pose into question whether new technology in the form of electronic negotiable debt instruments can be aligned with the current legislation. The main problem experienced by courts and administrative authorities is whether it is enough for an electronic negotiable debt instruments to meet the requirement of the letter of the law or if further legal requirements exists. The answer was recently delivered by the Supreme Court of Sweden who established that electronic negotiable debt instruments can exist provided that they enable the same control over the information of the debt, that functional substitutes for possession of the document exists and that the protective aims of the act on instruments on debt is upheld. The decision by the Supreme Court clarifies what the established law for electronic negotiable debt instruments is but offers little practical guidance as how the Supreme Court’s requirements are to be met from a practical point of view. Thus, this essay looks at three practical solutions for electronic negotiable debt instruments; legislative solutions, contractual solutions and technical solutions, and evaluate them against the established law. This evaluation results in varying compatibility with the established law but illustrate that there are practical solutions that could be adapted to fit electronic negotiable debt instruments and be legally enforceable, provided a teleological interpretation of debt collecting laws and ordinances. The essay concludes with a discussion as to the disincentives and incentives for the legislator or market participants to choose to take one or more of the solutions into practice and if so what solution would be preferable. It is argued that contractual and technical solutions are preferred as they do not require a new system of legislation. However, from a practical point of view it is argued that the legislator should clarify the status of electronic negotiable debt instruments in current legislation and ordinances that govern the Swedish Enforcement Authority in their debt collecting practice.
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