Säkerhetsöverlåtelsen - ett pantat köp? - En kritisk granskning av säkerhetsöverlåtelsens ställning idag och vid en övergång till en lagstadgad avtalsprincip och registerpant
Sammanfattning: A frequently discussed topic among Swedish legal scholars is the Swedish system concerning perfection of rights in rem, i.e. the requirements which must be fulfilled if a purchaser or pledgee is to become protected against all third parties’ rights on the sellers or pledgors’ side. A new government committe proposes a legally defined principle of contract regarding purchases of goods, i.e. the purchaser is protected against the third parties on the sellers’ side when signing a contract. The committe also proposes a new law on pledges, according to which the pledgee becomes protected against the pledgors’ third parties after a registration into a public register and advertisement in “Post- och Inrikes tidningar”. This is a rather radical change from the current system where a buyer is protected against the third parties on the sellers’ side when the sold or pledged item is cut off and/or transferred to the buyer (a principle of traditio). The security assignment of goods is a type of transaction that according to Swedish law has characteristics of both a purchase and a pledge. According to now governing principles, a security buyer has a right to separation in the case of a security seller’s bankruptcy, but a security seller only has a preferential right in the case of the security buyer’s bankruptcy. According to the proposal a security assignment now will be considered and treated as a pledge. But, since there will two kinds of perfection requirements to achieve protection, there will be new problems for the adjudication, since they now have to make distinctions whether a transaction is considered a purchase or a pledge. When analysing the effects of the proposal the author sees positively on the fact that security assignments fully will be considered as a pledge. However, since there will be a problem of distinction for the adjudication, it is unsatisfying that the proposal doesn’t contain any information how to make the difference between a purchase and a security assignment. The author also finds that the risk of fiduciary pledges will be more common to be unsatisfying. However, with a more modern pledge regulation than the one proposed, perhaps in the form of a notice filing system, the incentive to make security assignments to avoid the perfection requirements for pledges will be far smaller.
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