Introduction

The term restitution for wrongs, or any direct translation of it into Swedish, is not commonly used nor known in Swedish law. The categories often dealt with under this heading belong in general to the vague and vastly criticised area of unjust enrichment law within the Swedish legal system, but also this term is to a substantial degree unknown to most Swedish lawyers. The first question for a survey of restitution for wrongs in Sweden is then: What, exactly is a wrong and what kinds of legal problems are dealt with under this heading in other legal orders?

 

The first main problem is accordingly to find the different phenotypic situations which to search for in Swedish law. As far as I could understand from accounts from other jurisdictions one can find some general questions underlying the notion of restitution for wrongs. As for definitions, Birks describes “restitution”, after adjustments, as “the response which consists in causing one person to give up the to another an enrichment received at his expense or its value in money”.[1] The second criteria, then, is that the enrichment had its base in a wrong against the plaintiff, in some way. What kinds of “wrongs” should constitute a claim for restitution? It seems that Birks account in this regard is too much based in English law for any easy translation into the Swedish perspective. Apparently, however,”wrong”, in this context, can for instance be situations in which the defendant has committed some unlawful act against the plaintiff and thereafter exploited the situation. In Swedish law, this situation would probably in many cases be considered to primarily belong to the law of torts, albeit not necessarily. Within this presentation I will primarily focus on some situations which seem to have a connection with restitution law, as I understand it, and are categories mainly lying outside the scope of tort law. The groups are 1) “Unauthorised” usage of other’s property and compensation claims on this basis, 2) Conflicts between claims to property and adjoining questions of compensation claims (including situations of double sales) and 3) Some consequences of breaches of contract. Primarily, since restitution for wrongs came into the discussion within the Study Group on a European Civil Code against the background of our survey of unjust enrichment law in Europe, this paper should focus on enrichment claims arising from the named phenotypic situations. But it should be held in mind, as has been previously stressed that Swedish law seldom uses the notion of enrichment when establishing the right of a claim to compensation. When A uses B property without consent or other justification, there is no area of enrichment law on which A can rely for his claim of compensation. Neither is it common to refer to a claim of compensation for someone’s enrichment as a result of a breach of contract. Rather, the common remedies are damages and value compensation, even if other types of compensation in money also are used.[2] It would therefore be rather meaningless if I restricted this presentation to the cases in which the notion of enrichment would come into account in a Swedish case from one of the above-mentioned groups. The presentation will therefore be broader and will include accounts on legal questions perhaps peripheral to the questions in focus to the work of the Group.

 

The difference in systematic structure reopens the everexisting problem of demarcation in comparative legal work. To fully understand that Swedish approaches to the situations are often needed some background information on surrounding rules and the Swedish legal systematic structure as a whole. This would naturally require more time and effort than is reasonable to put in. Therefore, I have tried to stick to the most basic situations in each of these groups and tried to make a more thorough presentation of these, rather than giving short accounts on the different questions that may arise within the groups. I believe this approach to best reflect the Swedish attitude since this is substantially questions without statutory regulation. A result is for instance that I will deal primarily with ownership rather than other “property rights” within the part of competing claims to property.

 

One more preliminary remark must be made. It is characteristic of Swedish law to draw the line between real property and “loose” property - chattels, moveables – quite strictly, especially in the law of sales.[3] This should be held in mind when looking for the law of restitution for wrongs in Swedish law.

 

A question of terminology needs also be addressed. Substantial emphasis will lie on the transfer of ownership of property and conflicts arising from different claims to the same property. In such a situation, the person claiming ownership to the property has often bought the property, but not always. The same as applies for competing claims between several buyers generally also applies for the situation where one of the claiming parties has either received the property as a gift or as performance in a barter transaction (a contract of exchange). Nevertheless I will generally speak only of the seller and buyer, rather than the more general terms assignor or transferor and transferee. Where the type of acquisition has importance, this will be explicitly mentioned.

General Remarks on “Unauthorised” Usage of Other’s Property

One category falling under the heading of restitution for wrongs is the unauthorised use of another person’s property. With this I mean that a person is using property owned by another person without a contractual right thereto, or any other legally acknowledged right of usage (as the case may be in a situation of necessity, for instance). What kinds of remedies is the owner in such a case entitled to? Also, what applies if, instead of a violation of the owner’s right, the person who is deprived of the possibility to use the property was not the owner but a tenant or otherwise had a right of usage to the property.

 

When the problems are formulated in this general way they enter into vast and disparate parts of Swedish law, tort law, real property law, intellectual property law as well as other parts. I will briefly try to account for the outlines of unauthorised usage of other’s property as it is dealt with within the different areas of the law.

 

Before, something should be said as to what makes the usage “unauthorised”. Firstly, the usage of someone’s property may be criminal. The property may be stolen by the user or otherwise acquired through criminal behaviour. Secondly, the property may be used negligently in a way that fulfils the criterion of culpa in tort law, although it does not amount to a criminal offence. A person negligently assumes a car on the street is his and uses it. Thirdly, the usage may be negligent or even criminal but based on a correct legal title. Fourthly, the usage may be in good faith, but not based on a correct legal title. A person mistakes a car on the street for his own and uses it. And lastly, the usage may be in good faith, based on a correct legal title, but in some other way “unauthorised”. A person buys a stolen car from another in good faith and uses it. The first categories fall within criminal law and tort law and will not be addressed here, but all the other categories will have importance for the survey below.

Real Property

The “Klander“-rules

In the Real Property Code special rules are laid down under which the owner of real property may claim back property from a possessor of his property. The rightful owner may claim back the property from the possessor with a special kind of action, so-called „klander“ or „klandertalan“, the closest English translation seems to be protest action. „Klander“ may be used against both good faith possessors as well as possessors in bad faith. The possibility of reclaiming the property with an action of “klander” will be dealt with under the next heading of this paper, which deals with good faith acquisition and competing claims against the same property.

Second Owner in Bad Faith

According to ch 5 sect 1 of the Real Property Code, a rightful owner to land, which he recovers from an unauthorised possessor who was not in good faith has a right to compensation for revenues the possessor has had from the property. If B was in possession of A’s land unit and leased a house on the property to a tenant C, A has a right to compensation for the revenues B had under the lease contract with C. Another example is when B cut and took timber from a land unit on which forestry was carried out, A has a right for compensation for the timber.

 

But what if there had been no actual revenues from the property. It seems that there are possibilities for the rightful owner also to claim compensation for possible revenues from the property.  For instance, if B did not lease the house to any person but instead lived there himself, it has been said that A would nevertheless have a right to compensation corresponding to the amount B reasonably could have received if he had let the house.[4] In the establishing of such a right it is generally not considered whether A indeed intended to use the property himself under the time in question.[5] These rules are not considered to be enrichment-rules since the obligations for the unlawful possessor is not restricted to any enrichment.

Second Owner in Good Faith

If on the other hand the second owner of the property was in good faith, and if he for instance had bought the property from someone whom in his turn had a formally correct legal title to the property, other rules apply. Earlier it was held that the first owner would have a right to compensation for revenues regardless of the good faith of the second owner (NJA 1921 s 382 and NJA 1939 s 70). This is no longer the case. It seems that in this case, the second owner may keep the revenues from the property and the rightful first owner is not entitled to compensation for that or any other benefit the new owner has had from the property. This was recently made clear when the Supreme Court in NJA 1996 s 261 established that good faith exempted the second owner from obligation to compensate the first owner for revenues from the property. (The latter case concerned questions of compensation for revenues from a newly constituted land unit after a subdivision of common land. This was thus not actually a case of klander, but as the Supreme Court in this case stated may the rules on the consequences of a klander-action be used analogically in these cases.)

 

It may be the case that someone acquired the land unit in good faith but thereafter became in bad faith because he got information of the real owner’s claim to the property. If the possessor in such a case continued to have revenues from the property, he must compensate the owner in accordance of what was earler said of bad faith possessors. 

Compensation Claim from the Possessor against the Real Owner

These are some situations in which the possible enrichment of the second possessor may come into discussion. But the question of enrichment may also arise on “the other side”. Say that the possessor/the second owner has had expenses for the property, for instance if he has made repairing on a house on the property. May the first owner then get his property back without being obliged to compensate the possessor for his expenses?

 

Firstly, it is clear that if the second owner was in bad faith concerning the first owners claim on the property the second owner is still entitled to reduction of the amount of compensation for costs he has had for the obtaining of the revenues as well as expenses he had for maintenance of the property (JB ch 5 sect 1). However, the first owner must not compensate the second owner to a higher degree than he himself has a claim against the second owner for that person’s benefit from the property. In other words: The second owner has only right to get compensation for his expenses to the extent that they can be deducted from the amount he is obliged to give to the first owner.[6]

 

There are however supplementing rules concerning necessary expenses on the property in JB ch 5 sect 3. According to this a second owner has right to compensation for necessary expenses on the property. This applies for a second owner in good as well as in bad faith and is considered to be a rule of enrichment-type.[7] The argument is that the first owner benefits from the costs the second owner has had, since he otherwise would have had to pay them himself. What is to be defined as a “necessary” cost must be established from the circumstances of the case but in the preparatory work from 1909 “necessary costs” are defined as costs that were needed to enable usage of the property in the same way as before also in the future.[8]

 

Another question is whether the second owner also has a right to compensation for useful costs he has had on the property. Say the water pipes were changed on a house on the property although this was not acutely necessary, is he then entitled to compensation for these costs? It is held that only a possessor in good faith is entitled to such compensation.[9] According to JB ch 5 sect 3 in fine he is entitled to compensation only to the extent that his expenses have increased the value of the property.

 

A last problem that may arise is when the value of the property for some reason has decreased when it was in the second owners possession, for instance as a result from an accident but possible also as a result from actions taken by the new owner. According to a generally formulated rule in JB, ch 5 sect 2, the second owner shall compensate the first for decrease in value to the property due to the property being damaged or other factors that has lead to a decrease in the property’s value, to the extent that this is attributed to the second owner and only to the extent that it is equitable in reference to the second owners actions and other circumstances. The way the rule is formulated it seems that the starting point is against obliging the second owner to compensate for a decrease of the property’s value. This is, Karlgren holds, an unfortunate formulation, which does not reflect the intentions of the legislator.[10] The main rule is still that compensation shall be paid. Karlgren has also stated that enrichment considerations may be taken in these cases although they formally must be referred to the assessment of what is equitable.[11]

Other Kinds of Usage of Real Property without Legal Title

A last type of situations should here be mentioned, the situation that someone without legal title used someone’s real property. A person may have stayed in the wrong log cabin in the mistaken belief that he has rented it or someone may have put property on a landing stage in fact belonging to the neighbour. This may also be the case when someone actually breaks into a house and stays there, and other similar bad faith situations.

 

As was above mentioned in cases of „klander“, a good faith party had quite far-reaching possibilities to get compensation for expenses on the property. The following question is if this also applies for good faith parties without a legal title. The situation is not solved in statutory law. In the literature the general answer seems to be that such a good faith possessor is not entitled to compensation for his expenses.[12] Karlgren has stated that the possessor possibly could, in some rare exception cases, be entitled to compensation.[13] This applies both for necessary as well as useful costs on the property. Legal title is thus considered crucial for the question of compensation for expenses. The question of revenues from the property is dealt with along the same lines; a possessor without a legal title is obliged to give out revenues received from the property even if he was in good faith.[14] Hellner has thoroughly examined the issue and ended up with this solution in analogy with rules concerning border disputes and so-called „parcell“-disputes.[15]

 

From a policy point of view this may seem a bit harsh against the good faith possessor, especially in regard of the otherwise favourable attitude in Swedish law. It has thus earlier been argued that the possessor deserves the protection of the legal order, at least in cases when the claim is risen after long time has passed.[16] Comparisons have been made to condictio indebiti-claims and it has been argued that some sort of enrichment rule perhaps should be introduced for the benefit of good faith possessors.[17] With the new Real Property Code, the legislator has seemingly taken a harder stance against possessors in good faith than earlier which signals that no such protection is allowed today.

A Solution in Tort Law?

As has been said in earlier papers, the unauthorised usage of property has sometimes been dealt with within tort law. I include the passage of interest from an earlier paper.

 

It must be pointed out that there are two certain requirements in Swedish law - within this context - for a right to compensation within tort law. Firstly, so-called pure economic loss (defined as a loss without connection to previous personal injury or damage to property) is, according to the main rule, only compensated if it is caused through a criminal act. Secondly, which may sound more like a truism than it actually is, for a right to compensation for pure economic loss is required that the plaintiff actually had a loss. This is of special interest for the present category where someone has used another’s property: What if the owner did not intend to use the property himself or did not have a loss resulting from the usage. Also, what if the criteria for criminal responsibility are not fulfilled? It seems that the tendency in contemporary Swedish law is to deal with some of these cases within tort law, and to entitle the owner of the property to reasonable compensation for the usage, regardless of whether the owner would have used the property himself. These cases have in the dominant modern work on tort law been said to lie close to unjust enrichment law.[18] 

 

See the earlier mentioned case NJA 1993 s 13: B rented premises from A, and sub-let it to C. The contract between A and B was ended but C did not leave the premises, A therefore demanded compensation for C’s stay in the premises. The Supreme Court found that C was not criminally responsible but found that A nevertheless was entitled to reasonable damages.

 

The approach of dealing with the problem of unrightful usage of another’s property within tort law opens up a problem of systematic kind, as far as I can understand it. In the latter case, there were no comments from the Supreme Court of possible other approaches to deal with the problem, even if the minority of the Court stated that the question of whether the behaviour of the defendants was criminal was irrelevant for the establishing the right to compensation. An explanation for the absence of possible other approaches, for instance analogies with the “klander”-rules as was above mentioned, could of course be that the Supreme Court was procedurally bound by the way the plaintiffs expressed their claim. However, the Court explicitly referred to the principle of jura novit curia when considering whether compensation could be awarded in absence of a criminal offence. The Court then established that the plaintiffs indeed were entitled to compensation, seemingly by extending the right of damages outside the area of criminal behaviour in this case. (The main rule that pure economic loss only is recoverable in criminal cases is not exclusive. It was said in the preparatory work of the Act that the rule was not to be interpreted e contrario; it thus was intended only to state that if there had been a criminal offence, damages were to be awarded also for pure economic loss). 

 

How to interpret the minority opinion that the question of criminality was irrelevant is not an easy task. It could be, and that is my guess, that the minority disregarded of the connection with tort law and instead held that the decision was to be decided in accordance with, as the Swedish term for it goes, “general legal principles”. This could thus be seen as an adherence to the above account on how the questions of compensation in these “usage-cases” generally are to be dealt with in analogies with the rules on consequences of a successful reclamation of ownership from the real owner. The conclusion must however be that these cases could probably find a solution within different areas of the law, as it seems both a claim in tort law as a claim on the basis of general legal principles could be successful.

Chattels

The division between real property and chattels is far reaching in Swedish law. One should therefore be careful to draw analogies between the categories, which is evident in the difference between the protection of good faith party in real property law compared with chattels. We shall later see that a party in good faith has a much better chance of acquiring ownership to chattels then with real property, albeit with a possibility for the previous owner to reclaim the property against „ransom“.

 

In this section will instead be presented those cases where the possessor of the chattel can not find protection within the legislation concerning good faith acquisitions because some of the necessary criteria are not fulfilled. Also here are initially presupposed, however, that the possessor had a valid title for his claim. (In most cases could the possessor indeed refer to the good faith acquisition legislation, nut one exception is when the acquisition was made through inheritance or otherwise fell within the law of succession, for which the good faith protection does not apply).

 

In this case, however, Karlgren has said that the rules concerning „klander“also represent the legal situation for chattels. This is also reflected in analogy with the rule on property that have been distributed to the heirs of a person presumed to be dead, who later turns out to be alive. Hellner has also argued that the same should apply for chattels as for real property, when the rightful owner on grounds of vindication recovers the property.[19] A general rule would thus be that the owner of property has a right to compensation for revenues when someone in bad faith has used the property. The compensation would then be estimated at a reasonable price for the use, without regarding whether the owner would have used the property himself under the time period.[20] This rule is also applicable in situations where the possessor is not held responsible under criminal law.

 

A special question in the consideration if the possessor should have a right to reduce the amount he is obliged to give out when the revenues that floated in was especially high due to the possessor’s actions. For instance: B is without a right thereto in possession of A’s apartment. The normal price one could receive when subletting such an apartment is estimated at 1000 SEK but B managed to persuade C to pay 2000 SEK, due to his outstanding negotiating skills. Is B then required to give A 1000 SEK or 2000 SEK? The general rule is that B is only obliged to give A “reasonable” compensation, but the starting point of establishing the compensation is the revenue actually received.[21] If the possessor wants the amount to be reduced, the burden of proof lies on him.

 

What have been said up to now only deals with the question if the possessor is obliged to compensate for revenues he might have had from the property. But there are many other interlinked questions. For instance the obligation for the possessor to pay for damages to the property or compensation to the owner if the property is lost. It seems to be clear that if the property is lost or destroyed, the (former) possessor is obliged to compensate the owner for the value of the property.[22]

 

A special case where the property may be lost for the owner is when the possessor has acquired ownership through “specifikation”. In these cases it is said that the first owner of the property shall be entitled to compensation for the value of the property.[23] This applies for property for which the possessor has a formally correct title to support his claim of ownership. But there are many situations in which the acquisition does not give the possessor a valid claim of ownership, for instance if he inherited the property or when the criteria for a good faith acquisition were not fulfilled.[24]

 

There is one rule that has been referred to in this regard which gives possibilities of analogies, namely a rule in the book of successions. Under some (rather restrictedly defined) circumstances may a person be declared deceased when he is absent and presumed deceased according to ärvdabalken (the Book on Successions – hereafter ÄB) ch 25. If such a declaration was later found incorrect the successors shall return any property inherited from the “resurrected” person, according to ÄB ch 25 sect 7. The “resurrected” person also has a right to compensation for revenues the inheritors may have had from the property, for instance interest. If the possessor of the property has had expenses for the property is this deductible from the amount. This is the case both for necessary as well as useful costs.  The rule has been said to represent a general legal principle for situations where a rightful owner demands his property back and where the possessor had a formally correct legal title do the property.[25]

Double Sales and Other Unlawful Disposals - Chattels

I shall in this section present one type of conflict between different claims against the same property. First will be presented situations where someone sells property that is stolen or otherwise acquired through unlawful behaviour. This includes the situation where the seller had bought the property and where the previous seller had reserved the title to the property, but also cases where the seller actually stole the property and sold it to a third party. Thereafter will be presented cases of double sales of the same property or other double disposals, such as when B sells a car to A and thereafter leases it to C.

 

The emphasis on both these subjects will lie on the situations where the last buyer claims ownership on the basis of a sales contract, even if gifts and barter transactions are generally dealt with in the same way. Acquisitions, which in Swedish law are considered to belong to family law, such as inheritance and separation of an estate after a divorce, are generally excluded from the group of acquisitions that can extinguish a previous owner’s rights. More on this below.

The Principle of ”Vindicatio” and the Principle of ”Extinction”

When discussing different solutions to competing claims resulting from, for instance, someone selling stolen goods to a party in good faith, one may distinguish between two main principle approaches. Either one lets the right of the first owner supersede over the latter persons claims against the property. This would then, in principle, give the first owner the right to recover the property, a right of vindication, or, in Swedish, ”vindikationsrätt”. The other approach looks on the other hand to primarily protect the rights of good faith acquisitions; thus letting the claim of the acquirer supersedes over the first owner. This principle is called the principle of extinction, in Swedish ”exstinktionsprincipen”, since it ”extinguishes” the first owners right to the property. Different policy arguments support both views, but it has been said that the favoured approach in Sweden primarily has been the principle of extinction, albeit not without exceptions.[26]

The Good Faith Acquisitions Act

In Sweden, the traditional rule was laid down already in handelsbalken (the Code of Commerce) from 1734, where the rules in chapter 11 section 4 and chapter 12 section 4 stipulated that when a borrower or a depositary sold or pawned property without the owner’s consent, the owner had a right to recover the property without paying for it, if the possessor was in bad faith. This was interpreted to mean that the first owner had no right of recovery if the possessor had been in good faith; thus allowing for a principle of extinction. In 1986, however, new rules were introduced with the Act on Acquisition of Chattels in Good Faith (lag 1986:796 om godtrosförvärv av lösöre), hereafter the Good Faith Acquisitions Act. The second section of the act (the act only consists of 7 sections) says that if someone acquired chattel from someone who had the property in his possession without being owner of the property and not in any other way entitled to dispose of it, he nevertheless acquires ownership to the property if he gets it in his possession and was in good faith.

 

This rule applies not only for sold goods but also for gifts and barter transactions. However, it does not apply for property, which has come into possession through inheritance or other acquisitions that fall under family law (for instance acquisitions through division of property following a divorce or break up of cohabitation). It is clear that the rule covers not only the most apparent cases of sales of stolen property but also other cases where the seller sold the property in conflict with some regulation or contractual stipulation. An important example is when the seller had the property in his possession, but where the previous owner had reserved the title to the property (according to what is sometimes called a Romalpa clause). It also covers cases where the seller previously was owner to the property but where he thereafter had sold the goods. Also, and this is a change compared to earlier rules, the rule covers situation where the seller did not act as an owner to the property but, for instance, as a representative for the owner.[27] A condition is however that the seller (or rather the transferor if the transaction was not a sale) had the property in his possession. The concept of possession is a difficult one.[28]

Possession

In most cases, it is not difficult to establish whether some property was in the possession of a person. If B has a CD player in his hand when he offers it to C he is obviously in possession of the goods. The problems arise mainly in cases where the possible possessor did not have the property in his immediate possession. A characteristic case is a sales contract concerning a car where the car is in a repair shop, the car is thus not in the seller’s immediate possession. Would this still qualify as ”possession” within the meaning of the act? This is a question of so-called ”mediate” possession, in contrast with immediate possession, and has been a matter of some concern.

 

In NJA 1984 s 132, the Supreme Court considered whether the owner still had a horse in his possession after he had handed it over to a race trainer for harness racing. The Court found, with regard to the fact that the trainer had the horse in his care on behalf of the owner that the horse was still in the possession of the owner. 

 

A special kind of possession is when the property was in the joint possession of several persons, for instance a couple living together. In Swedish law a division is sometimes made between ”sambesittning” and ”gemensam besittning”. Joint possession could possibly be used as a translation for both these kinds of possession. ”Sambesittning” means possession where two or more persons at the same time but independent of each other have possession to a thing, like a married couple and their house. When several persons instead only have possession to some property together, for instance when there are two keys to two different locks to a safe-deposit box and it can only be open by the two ”key-holders” together, one talk in Swedish law about ”gemensam besittning”. The first mentioned kind of possession – sambesittning - may perhaps best be translated with co-possession, and the latter concept with, in lack of better terminology, joint possession.

 

Possession has an importance in many legal questions, perhaps most significantly within the law of property. For instance is a possessor presumed to be the owner of a thing, which is of importance for, inter alia, questions of distress. This presumption-rule concerning possession has a connection to the widely recognised principle of tradition, which will also be further discussed below.    

Good Faith

Further, the receiver of the property must be in good faith. This subjective element is to be assessed for the moment he actually got the property in his possession. It does not matter if he actually has adjusted to the property in any way, or started to use it, or the like.

 

Instead of possession in good faith has in earlier practice (NJA 1931 s 741) been accepted that a third party who had the property in his care on behalf of the owner received notice about the transaction. This requires not only that the acquirer was in good faith but also that the third party that had the property in his possession was in good faith in concerning the seller’s right to dispose over the property.

 

The most difficult problem in practice has been to assess when the acquirer was in good faith.[29] The legislator apparently foresaw this problem, and a special rule concerning the assessment of the acquirer’s good faith is stated in section 3 of the act. An acquirer is to be considered in good faith only if it is probable in regard of the condition of the property, the circumstances under which it was supplied and other circumstances that he should not have realised that the transferor had no right to dispose over the property. This rule thus puts the burden of proof for the factual circumstances on the acquirer of the property. This burden can obviously be quite difficult to fulfil when it comes to property that someone has had in his possession for a long time when most people have thrown away their receipts and often lack other ways of proving that the circumstances surrounding the acquisition was in accordance with this rule. In the preparatory work for the rule, it was said that the acquirer should take caution concerning property that is often subject to theft, for instance television-sets and cars. (When it comes to cars should it also be required that the buyer makes sure that the seller is registered as owner in the public register). Other circumstances that, according to the preparatory work, may be taken into account is whether the buyer has special knowledge about the market for the product he bought, in which case a higher standard of care applies.

 

Earlier court decisions where the acquirer was found to be in good faith should be used with caution, since the Good Faith Acquisitions Act was intended to make it more difficult to claim title to property in these cases. Decisions in which the buyer was not found to have been in good faith, however, may still be illustrative. For instance the case NJA 1982 s 312, where Torgny H (sic!) bought a car from A and where the sales contract included a reservation of title, or a Romalpa-clause. Torgny H later sold the car to another person C at a low price. To C, Torgny H had posed as being A and also explained that the reason for the low price was that he had to go abroad. In addition, he gave C some official documents concerning the car, although not all of them. The Court found that C had bought the car from an unknown person, that C had only relied on Torgny H’s oral information and that he had not performed any investigation of his own concerning the car. The Court found that a higher standard of care must apply for people in Torgny H’s position.

 

After the Good Faith Acquisitions Act went into force, there are some decisions where the Supreme Court considered the question of good faith, two of which dealt with car sales.

 

In NJA 1995 s 337, the Supreme Court considered a case where the seller had really gone out of his way to cover up the real facts. B sold a stolen lifting crane to C, but before he sold it he scratched out the registration number from the machine, replaced it with another one and directed the buyer to another salesman who had sold a machine with the registration number typed on the machine. It was established that the buyer did not know that the seller was not the rightful owner, and the following question was then if he should have suspected that something was wrong so that good faith acquisition failed under the rule in section 3. The Supreme Court found, after taking into concern the measures C had taken to investigate the circumstances as well as other factors, that C could not be considered to have been in good faith at the time of the purchase. The case thus indicates a rather harsh attitude towards the acquirer, at least when it comes to situations involving professionals.

 

An important aspect of good faith acquisitions is that once such an acquisition has been made, a person who indeed knows that the seller in the previous transfer was not the rightful owner nevertheless may gain title to the property if he buys it.[30] In other words: If a good faith-acquisition has taken place one time in a chain of transactions, the first owner is cut off from claiming the property from any following possessor. The original owner may however recover – ”vindicate” - the property from the person who stole it from him (or whatever the case may be), if that person once again acquires the property.

Recovery of the Property against “Ransom”

The rightful owner has, even when a good faith acquisition has been made in accordance with the Act, a right to claim the property back also from a party in good faith. The conditions are rather strict, and are stated in the fourth section of the act. From this section follows that if someone wants to reclaim property from a good faith possessor, he must present his claim within 3 months from when he got notice of that person’s possession, or otherwise lose the right to claim the property. Also, the owner must pay ”ransom” (in Swedish: lösen) for the property to the possessor. The amount of money the first owner needs to pay in ransom is, according to section 5, based on the new owner’s costs for acquiring the property as well as his costs for improvements. There is a limit; the ransom is never higher than the market value of the property.[31] If the good faith acquisition was a gift, the ransom is calculated on the basis of the giver’s costs for the acquisition as well as his costs for improvements on the property.  This presupposes that the giver was in such a situation that he would have been entitled to ransom himself, if the owner had directed a claim for the property against him. This means that if C has received the property as a gift from the thief B, then C must give the property back without being entitled to ransom. If on the other hand C in good faith has bought the property from B and then given it to D, D is entitled to ransom from A if he claims the property back

Double Sales

As was said, the act also covers cases of double sales, that is the situation when B sells the property first to A and thereafter to C. In such a case A may claim the property from C, if A has got the property in his possession, against ransom (within 3 months). The amount A must pay C in ransom is deductible from the amount he needs to give to B, but he nevertheless needs to pay the agreed amount. For instance: B sells his car for 1500 Euro to A and thereafter for 1000 Euro to C who also receives the car. A may claim the car from C if he pays ransom, 1000 Euro, as well as possible costs that C may have had for improvements on the property. B may in his turn claim 1500 minus 1000 from A.  And C may, in accordance with section 41 in the Sales Act, claim compensation with 500 from B. Whether C may demand that A pays the 500 Euro directly to him seems uncertain, but may be of importance for the case when B is insolvent. C: s claim is thus a rule on damages for the case he made a good deal.

 

Special rules apply for situations of pawn, section 9. Yet other special rules are given concerning acquisitions of ships, which are here left out.[32]

Examples

Some examples may illustrate the above recollection of the outlines of the legal situation of competing claims to property in Swedish law.

 

1) B steals A’s car and sells it to C, who was in good faith. C repaints the car and installs a new alarm, due to the high frequency of car thefts. A may recover the car from C if he compensates C for the prize C paid for the car as well as C’s costs for improvements of the car (the alarm and the paint).

 

2) B steals A’s car and gives it to C, who was in good faith. C is obliged to give it back to A without being entitled to compensation, even though he was in good faith.

 

3) B steals A’s car and sells it to C, who was in good faith. Thereafter C gives the car to D. A may recover the car from D if he compensates D for the prize C paid for the car as well as C’s or D’s costs for improvements of the car.

 

[4) It should also be noted the situation where B steals A’s car and sells it to C, who was not in good faith. C must then return the car to A without being entitled to compensation from A.

 

5) Related to 4. If B steals A’s car and sells it to an unknown buyer C, B is obliged to give the amount received to A.[33] See further below.]

Double Sales and Other Disposals – Real Property

The above part accounted for the outlines of so-called dynamic third party protection for chattels.[34] In this section I will present the outlines of the same protection for real property along the same lines as for chattels. Thus “B” will again stand for the “villain” in the situation, the person who in one way or the other is responsible for the problematic situation. B is thus the person who either sold the property twice or sold property which was under a Romalpa-clause or for which he had not himself the right to dispose over in this way, etc.[35]

 

As the example shows, the dispute can either be between, for instance, two different buyers or other claiming ownership to the same property. Another situation of the same kind arises when B sells property that did not belong to him. But these examples also cover claims from B:s creditors, as may be the case when B sold property, which a creditor kept the title of. The subject of creditor protection will be covered only briefly.

 

Again, “A” is the person with the oldest claim against the property and “C” is the one with the younger claim.

Good Faith Acquisitions of Real Property

It was above said that Swedish law goes rather far in the protection of the interest of good faith parties, the law allows in many cases for a good faith acquirer to “extinguish” the right of the previous right holder. It is not accurate to describe the protection of good faith parties to real property in Swedish law in the same manner. Rather, Swedish law, as well as probably most legal systems, reluctantly allows for a new owner to extinguish a previous owner’s rights only in narrowly defined cases.

 

In the Real Property Code, chapters 18, statutory rules concerning good faith acquisitions of real property are laid down. The starting point for the rules in this chapter is that the seller (or, as the case may be, the giver or the previously presumed landowner in a barter transaction) was not the “rightful owner”, section 1. The seller is not considered to be the rightful owner, in this sense, if his or any of his predecessors, acquisition of the title is invalid or otherwise does not apply against the rightful owner.[36] An acquisition may be invalid for different reasons, for instance in accordance with the rules in the Contracts Act (chapter 3) but also due to the special rules concerning real property.[37] (These rules will not be dealt with here; I refer instead to the previous paper on void contracts.)

 

If the seller or any of his predecessors’ acquisition is invalid is he then not the rightful owner.[38] The same applies if the seller or any previous seller for some other reason has not made a valid acquisition from a previous owner. This may be the case when the acquisition was valid per se, in the sense that all the formal requirements were fulfilled and there were no grounds for invalidity, but the contract for instance was cancelled due to a breach of the agreement. Another problem may arise when the parties to a contract have agreed upon a term, which forbids the buyer to sell the property. It should be noted that if the buyer (or the new possessor) actually has made a good faith acquisition, he is in fact the owner of the property and if he afterwards sells the property the new buyer is thereby protected from the claim of a previous rightful owner. As above, in a link of acquisitions, one good faith acquisition “heals” previous wrongful acquisitions.

 

In the law of real property, substantial effect is given to registration of the land unit in the public land register (in the Swedish terminology, the buyer receives a “lagfart”, which signifies his right to the property). Entry into the land register does not, in itself, make a wrongful acquisition lawful, but it does man that a seller who can show that he was registered as owner in the register has a formal right to dispose over the property. The land register thus gives the starting point when establishing whether a good faith acquisition has indeed taken place.

The Main Rule – Chapter 18, section 1 of the Real Property Code

According to chapter 18, section 1, three criteria are necessary for a valid good faith acquisition of real property. First the transaction must have been a conveyance of real property, secondly the seller (or giver, donator) must have been noted as the owner in the land register and thirdly, the acquireror must be in good faith.

 

Example: A, „the rightful owner“ –invalid acquisition of ownership® B, registered in the land register and - sells/gives/exchanges for something to® C, in good faith.

 

A‘s claim for better right to the property („klander-talan“) against C would be dismissed.

 

1) The first criterion means that the one may only base a claim of good faith acquisition on some transactions, a sales contract, a barter transaction or a gift. Hereditary acquisitions do not suffice, even if that is not obvious from the wording of the rules.[39]

 

2) Secondly, the seller must be registered in the land register. Only so-called full entry in the register suffices.

 

3) The third criterion is that the buyer is in good faith. If the buyer knows or should have known that the seller was not the rightful owner, he cannot acquire ownership to the property. If, however, C is in bad faith and in his turn sells the property to a another buyer, S, and S is in good faith, a good faith acquisition of the property can be made. This may be made even though C was not registered in the land register but only B. 

 

Example: A, „the rightful owner“ –invalid acquisition of ownership® B, registered in the land register and – sells (etc) to® C, in bad faith and not registered, who -sells (etc) to® S, in good faith

 

A‘s claim for better right to the property („klander-talan“) against S would be dismissed.

 

This last situation may seem incongruent. The rule is based on the idea that if S establishes that C’s predecessor B is noted as owner in the register, this amounts to sufficient reasons for him to assume that C was indeed the rightful owner.

„Permanent Invalidity“- The Exception Rules

Under some conditions are the invalidity of such a kind that it excludes any possibility of good faith acquisition of ownership. In Chapter 18, section 3, are the exceptions from the main rule laid down. Under some conditions may a good faith acquisition not „heal“ the previous invalidity. If the sales contract between A and B was false may C not claim ownership to the property (chapter 18, section 3, para 1). That is, if B for instance simply copies A’s signature on a „contract“, this contract may not be used as a foundation for a good faith acquisition. The same applies, para 1, if B was forced to sign the contract under such conditions that it falls under section 28, the Contracts Act (duress-cases).

 

Another group of expeptions are given in para 2. There it says that if the „rightful owner“, when he signed the document of which the claim of ownership is founded, was under the influence of a mental disorder, or if he was bankrupt, or underaged or not permitted to himself dispose over the property and was under a legal custodian in accordance with the rules in the Code on Parents and Children.[40]

 

The last group of exceptions follow from para 3, according to which the possibility of good faith acquisitions is excluded if the contract was not in accordance with the formal requirements. This scope of this last exception rule is somewhat unclear from the wording, but what it is intended to cover are cases when the first acquisition lacked some fomral requirements. This means that a later good faith buyer can not get ownership if a previous sales contract was not in accordance with the formal criteria. Among these are not only the special formal requirements on contracts, written form etc, which was previously mentioned, but also special rules in the so-called „acquisition-statutes“, which stipulate, inter alia, that some aqcuisitions of real property must be reported to the public adminstration.[41] A reason is that the municipalities have a purchase option to real property under certain conditions.

Entry in the Land Register

Even if the criteria for good faith acquisitions in section 1 are fulfilled and no exception of the kind that follow from section 3 may the possibility of receiving ownership to the property still be excluded due to the rule in chapter 18, section 8. This latter section stipulates that if is noted in the land register that it is uncertain if the possessor is the rightful owner. Such a note is for instance made in the land register when there is a legal dispute concerning the ownership of the property. The rule in section 8 means thus that the possible good faith of the buyer is irrelevant in these cases, as regards the possibility to claim ownership against a former owner. Another thing is that the buyer may claim compensation from the seller according to rules in chapter 4 (mainly section 21).

Compensation from Public Funds

If someone in accordance with the rules in chapter 18, sections 1-2, succeeds in acquiring ownership of the property the “real owner” may claim compensation from the state according to section 4 in the same chapter. If the real owner contributed to the loss by failing to take action for the preservation of his right or in any other was contributed to the loss the compensation shall be reduced accordingly. In section 7 is stipulated that the state in such a case enters into the position of the real owner if he had a right to damages.

 

What above was said of compensation from the state applied for the real or previous owner, but the buyer may also receive compensation from the state if he fails to make a good faith acquisition due to the exception rules in chapter 18, section 3. Such a buyer could, according to chapter 18, section 4, sub-section 2, claim compensation from state if he was in good faith concerning the fact the assignor was not the rightful owner. The state again enters into the rights of the buyer against the seller for compensation.  

Double Sales of Real Property

The above situations dealt with the possibility of making an acquisition which, so to say, heals a previously wrongful acquisition in a previous link. The situation presented in this section is somewhat different. In this section are those cases where the seller was not actually a wronful possessor (nor had there been any other previously wrongful acquisitions) but where the seller himself acted inappropriate in a certain way, even though his ownership is undisputed. The typical example is when the owner sells the same property twice. In accordance with the wording of the Real Property Code is the seller in such a situation still considered to e „the rightful owner“ even in the second transaction, but he is no longer „authorised“ to dispose over the property. 

 

In a case of double sales there are then two competing claims for the same property, and one must have a right of precedence. According to the rules in chapter 17 in the Real Property Code, the person who first is entered into the public land register (gets „lagfart“)  „wins“, see chapter 17, section 1. The relevant point in time is not the actual registration but who is first at applying for registration, the first application precedes over the second, even if the court for some reason would take up the second application before the first one. If it is the second buyer who applies for „lagfart“, it is also required that he was in good faith concerning the other, previous, sales contract. If the second transfaree is in bad faith, a third person who in his turn in good faith buys the property from the bad faith second buyer may receive precedence over the first buyer if he applies for registration before the first buyer. It should generally be noted that the secon (or third or whatever the case may be) buyer does not need to be in good faith when applying for being entered into the land register. The relevant time for establishing good faith is the time of the sale. 

Acquisitive Prescription

The rules on acquisitive prescription should also be mentioned in this context, albeit shortly. This is regulated in the 16th chapter of the Real Property Code. These rules only come into play if the rules on good faith acquisition for some reason do not apply, that is, in situations where the criteria for such an acquisition are not fulfilled. Without going into detail, which I think is not necessary here; a possessor to a land unit may under some conditions acquire ownership to the property even though he could not base his claim on the rules in chapter 18. For instance may a person who has been living „under the claim of ownership“ for 20 years receive ownership to the property, if no actions have been taken against him and „someone“ has received an entry into the land register (section 1).

Compensation for a Losing Party

Already has been mentioned, briefly, some remedies a party that lost the right to real property may use. In some cases, it was said that the party might receive compensation from the state. In this section I will briefly mention the other possible remedies, chiefly belonging to the area of the law of sales of real property. In chapter 4 of the Real Property Code are the rules concerning sales of real property laid down, including the provisions dealing with remedies for breaches of contract. The rules of interest here are sections 21 and 24.

 

Section 21 stipulates that if the real owner through “klander” can recover the property from the buyer, the seller is obliged to give back the purchase money to the buyer. If the buyer was in good faith, he is also entitled to damages. This rule belongs to the catalogue of provisions, which stipulates that the buyer has a right to require that the property have a normal standard. One factor considered to be essential to normal standard is that the seller is the rightful owner, so that the buyer can make a derivative acquisition of ownership to the property.

 

Section 24 concerns the situation where the buyer loses the possibility to acquire ownership of the property because the seller sold the property to another person as well, and that person was quicker in applying for entry into the land register. Section 24 says that in situations of double sales, the rule of remedies in section 21 shall equally apply. That means that the seller shall give back the purchase money received under the contract. This is considered as a rule on cancellation of contract even if the buyer could not return the real property to the seller, for obvious reasons.

Breach of Contracts - Chattels

One situation where restitution for wrongs may be considered is cases of breach of contract. As a remedy, the benefited party would then be obliged to give out the property or, if the property is lost the value of the property. As a rule, Swedish law bases the right of restitution of the same property in cases of contracts where there is something wrong with the causa, on the contract itself, and it is not considered necessary to base such restitution on unjust enrichment law.[42] This of course is a result of the fact that Swedish law lacks the principle of abstraction in the way it is acknowledged for instance in German law. But as we shall see, Swedish law also uses a sort of abstraction rule in other situations, namely when the property can not be “restituted” in kind and where the “enriched” party instead must give out the value of the property.

Cancellation of Sales Contracts

The starting point in contract law is the provision in the Sales Act, section 64. The section says that if the sales contract is cancelled, the parties are liberated from their duties under the contract. Typically, this means that the buyer does not need to pay and the seller does not need to give out the property. If the performances have already been carried out to some extent, they shall according to the second sub-section go back. Also, each party has a right of lien against the other. A contract may be cancelled for many different reasons, including the general rules of invalidity in the Contracts Act as well as the non-statutory principles concerning, inter alia, the theory of assumptions and invalidity due to contracts being in violation of legal rules or moral standards. But the rule in section 64 also deals with contracts that are cancelled also, or perhaps chiefly, because of special breaches of contract dealt with in the Sales Act, for instance delay or defects on the property. This rule does thus not take any account of the reasons for the cancellation of the contract. It should be noted that the party in breach of the contract generally has an obligation to give out damages to the other party in accordance with sections 67-70.

Rules on Cancellation

In this context, it is not necessary to give any detailed account on the reasons for allowing a right of cancellation of a sales contract. I believe this is an issue belonging to the area of the law of sales, without having much impact on the law of restitution, however it is to be demarcated. The consequences of the cancellation, in the wider sense of the expression, are the subject of interest here, as I understand it. But I should nevertheless say something on the general attitude towards cancellation in the law of sales, and more specifically, on the rules which may exclude the possibility of cancellation.

 

Both parties to a sales contract are entitled to cancel the contract under some circumstances, primarily in cases of severe breaches of contract. Under some circumstances is the right to cancel the contract, even when the criteria per se are fulfilled, excluded. This follows from section 66 in the Sales Act, which closely corresponds to Article 82 in CISG, but with an additional paragraph. Basically, a buyer may not cancel the contract when the purchased goods can not be returned in the same or essentially the same condition as it was received. In the second sub-section are exceptions to the rule given corresponding to the rule in CISG.

 

In the last sub-section, however, another exception is given which may be of interest in this context. The buyer may still cancel the contract, even if he can not return the property in the same condition as he received it, if he compensates the seller for the decrease in value of the property. This rule lacks a corresponding rule in CISG. According to the travaux prépartoires the buyer may not refer to the last sub-section when the property is without value at all. The rule thus presupposes that there is that at least something left of the property to be restored to the seller.[43] 

 

This rule only deals with the buyer’s restitution. For the seller this is seldom a problem; he generally only needs to give back the money received under the contract.

Compensation for Revenues from the Property

After a cancellation of the contract, the parties shall thus give back the property received: generally the seller shall give back the money to the buyer and the buyer shall give back the goods. In accordance with section 65, the seller is also obliged to give out interest on the money for the time period he had in his possession, and the buyer is according to the same section obliged to give out possible revenues he had from the property. The buyer is also obliged to pay “reasonable” compensation if he otherwise has benefited from the property. Section 65 does not take any account on who is responsible for the cancellation, that is, if any party has breached the contract.[44] The word “benefit” (in Swedish: nytta) seemingly excludes compensation for other detriment than of an economical kind.[45] This section must be seen against the background of other rules in the Sales Act, most importantly the rule on damages in section 67.

 

It should be noted that in some cases where the possibility of damages is excluded in section 67, “correction” could be made under this article. Say a buyer has bought a machine from a seller that proved to be defect, therefore causing loss of income due to a break in the production. Under section 67, the buyer may only receive damages for this loss if the seller was negligent (or in the case of a guarantee). Under section 65, however, the fact that the buyer could not effectively use the machine may lower the amount he needs to give out to the seller. In addition, according to the travaux prépartoires, the buyer’s “discomfort” of receiving defect goods should also be taken into consideration. Another limitation in the seller’s right is that compensation shall only be awarded to the extent it is reasonable.

 

The actual assessment of the amount on both sides may be difficult. When the revenues of the property are closely linked to the kind of property, for instance the property was a debt or stock in a company, it is mostly not very difficult to estimate the value of the compensation under section 65. The amount is then calculated pretty much the same way that the interest for the seller is calculated. In other cases, the assessment may be more difficult. It should be noted here that the rule only stipulates that actual revenues cause an obligation to compensate – revenues the buyer could have had from the property does not give rise to such an obligation, which is a difference from what above was said for cases of unauthorised usage of property. Another factor that may protect the buyer from very far reaching claims of compensation is found in section 75, which expresses that the buyer has a right to compensation for expenses for care taking of the property before the delivery to the seller.

Increase of the Value of the Goods

It may also be the case that the buyer made some investments or work on the goods while in his possession, resulting in the property being more valuable at the time when the performances are to go back. This situation is not explicitly covered in section 65, but is to be dealt with “in accordance with general legal principles”, as the common Swedish expression reads. Ramberg has said that the buyer in these cases should be credited expenses on the property to the extent the buyer can profit from this after the restitution [46]

 

If the buyer made investments on modifying the property to his more specific personal requirements he could not expect compensation for this.

The Seller’s Obligation to Pay Interest

In section 65 ther eis also an obligation for the seller to give out interest to the buyer. The amount is calculated from the day the seller receives the payment for the goods until the day of the repayment to the buyer. According to sections 2 and 5, the Act on Interest, the interest rate under this section is the discount rage plus two percent. If the seller neglects to pay back the amount in due time, the interest rate is instead calculated in accordance with the rules on interest on overdue payment. The rate is then, according to section 8 in the Act on Interest, the discount rate plus eight percent.

When the Property Can Not Be Returned

The concept of abstraction enters when the parties can not give back the property in question. This is chiefly a problem for the buyer, the seller generally only has a to give back the money received. One thing is that the buyer, as most often is the case, actually could not return the property. The property may be consumed or destroyed. Another situation is that the seller does not always have to accept a return of the property but could instead claim compensation in money because the quality of the property has changed.

 

In the Sales Act, section 66 sub-section 1, the buyer’s right of cancellation of a sales-contract is limited to when he can give back the property essentially unchanged and undiminished. There is however situations in which the buyer keeps his right, even though he cannot give it back in the same condition as it was received. This may be the case when the buyer sold the property to a third party before he noticed or should have noticed the defect that caused the claim of cancellation. How should the amount the buyer in these cases is obliged to give out be viewed? Either one can hold that the money the buyer received from the sale of the property is a kind of revenue, or that the money received is a substitute of the property, which he is obliged to give back. The latter interpretation seems to be the most reasonable.[47]

Damages

An important rule in the Sales Act is the rule on damages in section 67 and the following sections 68-70, which completes the other rules on breaches of contracts. The main issue has here been the rules on cancellation. As was said, these rules do not really consider who was in breach of the contract, the consequences were indifferent in this aspect. This means that an important part of the remedies against breaches of contract lies on the rules on damages. 

 

Cancelled Sales Contracts – Real Property

“Klander”, as was said, is a special action concerning ownership of a land unit. But questions concerning restitution may arise also in other situations in real property law. A previous owner may for instance cancel a sales contract of the property and claim the property back from the buyer of the property for, say, lack of payment of the property. And similarly, a buyer may indeed cancel the contract because of defects on the building or some other reason. What applies in these situations for revenues the buyer has had during the time he was in possession of the property and what if the value of the property has decreased, either due to accidents or to activities attributable to the possessor (perhaps he has sold forest on the property)? This will be briefly presented here. The different legal situations, which give rise to a right to cancel a contract, will not be accounted for here. Even if these rules have some connection with the questions dealt with here, I consider them to lie outside the core of the subject and will therefore exclude them unless it is necessary to give some account.

 

The general rules concerning cancellation are laid down in chapter 4 of the Real Property Code or follow from analogies. Cancellation of a sales contract of real property entails, as for any cancellation of contract, that as a main rule, the parties shall return their performances. The seller will get the land unit back and the buyer gets back the purchase money. The buyer will also be entitled to interest on the money in accordance with the Act on Interest, section 2, sub-section 2. Often is this neutralised with the right to compensation the seller is entitled to for the benefit the buyer has had from the property during the time it was in his possession, in analogy with the Sale of Goods Act, section 65, sub-section 1. [48]

 

The rule in chapter 4, section 27 of the Real Property Code stipulates that a buyer who has made new mortgages on the property may only cancel the contract if he has paid the seller an amount of the purchase money sufficient for the seller to be able to get compensation for the mortgage. If the buyer has not yet paid an amount sufficient for a set-off, he may still cancel the contract of he pays the difference according to the same rule.

 

 


Literature

Birks, Peter An Introduction to the Law of Restitution, Clarendon Paperbacks, Oxford 1990.

Grauers, Folke Fastighetsköp, 13 ed, Juristförlaget i Lund, Lund 1994

Hellner, Jan “Betalning av misstag” In: Juridisk Tidskrift 1999-2000 [Betalning av misstag]

- Kommersiell avtalsrätt, Juristförlaget, Stockholm 1993.

- Om obehörig vinst, Stockholm 1950 [Hellner]

- Skadeståndsrätt, 5 ed, Juristförlaget, Stockholm 1995 [Skadeståndsrätt]

- with Ramberg, Jan, Speciell avtalsrätt I. Köprätt. 2 ed, Juristförlaget, Stockholm 1997

- Speciell avtalsrätt II. Kontraktsrätt. 1 häftet. Särskilda avtal. 3 ed, Juristförlaget, Stockholm 1996

- Speciell avtalsrätt II. Kontraktsrätt. 2 häftet. Allmänna ämnen. 3 ed, Juristförlaget, Stockholm 1996

Hessler, Henrik Allmän sakrätt, Norstedts, Stockholm 1973

Håstad, Torgny Sakrätt avseende lös egendom, 6 ed, Norstedts Juridik, Stockholm 2000

Karlgren, Hjalmar Avtalsrättsliga spörsmål, Norstedts, Lund 1954

- Obehörig vinst och värdeersättning, Norstedts, Stockholm 1982 [Karlgren]

Malmström, Åke, with Agell, Anders Civilrätt, 15 ed, Liber Ekonomi, Malmö 1997

Ramberg, Jan Köplagen, Norsteds Gula Bibliotek, Göteborg 1995

Rodhe, Knut Handbok i sakrätt, Norstedts, Lund 1986

Rodhe, Knut Obligationsrätt, Norstedts, Lund 1956

Undén, Östen Svensk sakrätt 1. Lös egendom. 9 ed., Norstedts, Lund 1974

Vahlén, Lennart Fastighetsköp, 2 ed, Norstedts, Stockholm 1968

 

 



[1] Peter Birks An Introduction to the Law of Restitution, Clarendon Paperbacks, Oxford 1990.

[2] See Rodhe, Obligationsrätt, p 465 ff. Other types of compensation, broadly speaking, in the law of obligations are reduction of the price, interest, cost compensation and revenue compensation, Rodhe p 466.

[3] Compare Jan Hellner „Specific Performance In Swedish Contract Law“, Scandinavian Studies in Law Volume 38: Legal Issues of the Late 1990:s, p 15.

[4] Karlgren p 101.

[5] Hellner p 232.

[6] Karlgren p 102.

[7] Karlgren p 102.

[8] See Karlgren p 102.

[9] Karlgren p 103.

[10] Karlgren p 107.

[11] Karlgren p 108.

[12] Karlgren p 111.

[13] Karlgren p 111.

[14] Hellner, p 282 ff, Karlgren p 111.

[15] This term is rather unknown also in Swedish law and concerns according to Hellner some types of disputes concerning interpretation of land regulation, see Karlgren p 111 n 27.

[16] See Undén Sakrätt II:1, 4 ed, p 77 ff.

[17] Karlgren p 112.

[18] Hellner Skadeståndsrätt p 424.

[19] Hellner p 233.

[20] Hellner p 234.

[21] Hellner p 240.

[22] Karlgren p 109.

[23] Agell/Malmström p 85.

[24] See for instance Handelsbalken (the Book on Commerce) ch 11 sect 4 and ch 12 sect 4.

[25] Hellner p 265.

[26] Håstad p 62.

[27] Håstad p 65.

[28] See Hessler p 99 ff.

[29] Håstad p 67.

[30] See NJA 1975 s 708 in fine.

[31] Håstad p 71.

[32] See sjölagen (The Maritime Act) chapter 2 section 10.

[33] Hellner p 241.

[34] See Hessler XXX

[35] See Hessler, p 9.

[36] See Grauers, p 302.

[37] These rules are most significantly dealing with the special formal requirements of sales contracts of real property, the Real Property Code, chapter 4. The most important requirements are that the contract must clearly state that the ownership of the property is transferred throught the transaction,  it must be in written form and signed by both the seller and the buyer and it must include the price, chapter 4, section 1, sub-section 1. Sales contracts not fulfilling these criteria are in accordance with sub-section 3 invalid.

[38] Grauers, p 303.

[39] Grauers p 305 f.

[40] It should be noted that this kind of legal custodian, in Swedish: förvaltare, is more far-reaching than „god man“, which has been previously discussed. When a god man is appointed, the principal is still allowed to legally dispose over his property. The contrary applies in cases of „förvaltare“.

[41] See, inter alia, lag (1992:1368) om tillstånd till vissa förvärv av fast egendom.

[42] Karlgren Obehörig vinst, p 17

[43] Ramberg p 629.

[44] Ramberg p 620.

[45] Ramberg p 621.

[46] Ramberg p 622.

[47] Ramberg p 625.

[48] See Grauers, p 106.