Återkrav av överdebiteringar - En studie om passivitet och condictio indebiti

Sammanfattning: When someone has overpaid in the mistaken belief that there was an obliga-tion to pay, the doctrine of condictio indebiti comes into play. For the princi-ples to be applicable, the payment must have no legal basis. A legal basis for the payment exists if there is a contractual basis for it, or if the payment con-stituted a disposition. The general rule of condictio indebiti is that the payment must be returned. However, in some cases, a payee may be entitled to retain a payment without a legal basis. There are three requisites. The payee must have received and subsequently adapted to the payment in good faith. Furthermore, in the light of a general assessment of the parties’ interests, it must appear to be justified that the payer's right of repayment should fail. Examples of circumstances that may be significant in this assessment of interests are which of the parties was able to oversee the situation at the time of payment, and whether any of the parties acted negligently. The principles of condictio indebiti allow for an assessment that considers the interests of both parties. However, there are other rules that may affect a pay-er's right of repayment. If the payer delays too long with his repayment claim, the right of repayment may be lost according to the general principles of pas-sivity. This paper discusses if and when such passivity effects can occur, and how they relate to the principles of condictio indebiti. In exceptional cases, a contracting party who is passive may be bound by his passivity. The passivity then gives rise to the creation, modification, or can-cellation of a contractual relationship (contractual effect). As a starting point, the passivity must be interpreted as a legal act in order for it to have contrac-tual effect. The justified reliance of the non-passive party is crucial to the question of whether a legal act exists. The question of whether a party can be considered to have waived its rights under the contract also requires the knowledge of the waiving party. Thus, in an overcharge situation, the recipi-ent must have a justified reliance that the payer has waived his right and the payer must have knowledge of the overcharge. However, according to substantive norms of passivity, passivity may also be regarded as an independent legal fact. The distinction between passivity as a legal act (subjective passivity effect) and passivity as an independent legal fact (objective passivity effect) is upheld in the legal literature. In "Svartöns pris" NJA 2022 s. 3, the Supreme Court stated that a claimant can lose his right of repayment due to passivity. The Court cited statements in previous rulings regarding the obligation to notify the counterparty that a claim is being asserted. Upon failure to comply with this obligation, the claim is lost. Such a duty may exist when a party knows that the other party is establishing himself in reliance on an erroneous legal assessment, when a party has given the other party the impression that he has surrendered his right or when a party has failed to assert his right for a very long time. When both parties are unaware of a deviant contractual practice, it is crucial which of the parties is closest to bearing the risk of its negative consequences. The situations in which the application of the passivity principles and condic-tio indebiti would lead to different conclusions seem to be rare. The time lag between payment and recovery is of central importance for the adaption re-quirement. The passivity of the claimant may also be relevant for the assess-ment of interests. The good faith of the payee is crucial to condictio indebiti, but typically also to the passivity rules. The risk allocation rule mentioned in the paragraph above prescribe an assessment very similar to the assessment of interests. If Article 47 of the Sale of Goods Act (1990:931) is directly or analogously applicable to the type of contract, the payer must make a claim against an invoice. In the absence of a complaint, the payer suffers evidentiary disad-vantages. A payer's passivity can thus affect his actual chances of success with a recovery, even if the right to repayment as such has not been lost.