Traditionsprincipen och avtalsprincipen. Bör Sverige följa det danska exemplet och införa avtalsprincipen vid köp av lösöre?

Sammanfattning: This essay aims to investigate and compare the doctrine of traditio (known as traditionsprincipen) and the principle of contract in the area of Swedish property law in order to evaluate which alternative should be used in future in Sweden. To give a new perspective, the Swedish findings will be compared to the situation in Denmark where a contractual principle is already in effect. Traditionsprincipen has long been a central part of Swedish property law. According to the principle a buyer of movables achieves protection against creditors to the seller through a transition of possession, which has come to mean the severing of a seller's ability to dispose of the property. An alternative to this is registration in accordance with Lösöreköplagen, which together with traditionsprincipen was meant to counteract mainly fictitious contracts. A contractual principle is applicable in Swedish consumer law. A general adaptation to a principle of contract was proposed in SOU 2015:18. Denmark applies such a general principle which is considered to function well without major issues. This principle gives the buyer protection through the contract if the property is determined or individualized. In the light of the Danish example I find that the purpose of traditionsprincipen can be recovered through other means and that the assessments arising from applying a contractual principle should not be too difficult. Traditionsprincipen appears to target both real and fictitious contracts which is not proportional. Question is if the buyer of movables deserves a right to separation. A legitimate need for the trade to leave property with the seller speaks for such a right but execution efficiency would decrease. There is also advantage in the regulation as far as possible conforming with the public general legal awareness and regulations in comparable countries, which speaks for a contractual principle. Giving thought to all presented arguments I find it preferable to abolish traditionsprincipen in favor of a contractual principle with support in law. Protection is acquired through the contract if the object is defined or individualized with binding effect. Unlike Lösöreköpkommittén I find value in keeping consumer law regulated separately. Furthermore the regulation needs clear a border against transfers where the purpose is for the property to act as security for a different claim.