sou · GOB356d1 · 2001-01-01 00:00:00 — föreslagna vindikationsregelns tillämpningsområde, varvid det konstateras att det förhållandet att reglernas tillämpningsområden inte helt sammanfaller inte förväntas innebära några påtagliga olägenheter i praktiken. Vidare diskuteras situationer när egendom som en ägare kräver att få vindicera har ökat eller minskat i värde under den godtroende förvärvarens innehavstid, när egendomen inte finns i behåll, har ersatts av annan egendom eller förändrats på ett avgörande sätt. Även rätten till egendomens avkastning diskuteras. Den föreslagna vindikationsregelns betydelse för panträtt i lösöre behandlas, liksom möjligheten att göra godtrosförvärv av retentionsrätt. Det framhålls att det enligt uppgift inte kommer att finnas möjligheter att teckna försäkringar som ger ersättning till den som tvingas att lämna ifrån sig egendom på grund av ett vindikations- anspråk samt att skattelagstiftningen inte ger någon rätt för den som tvingas att lämna ifrån sig egendomen att återfå vad han eventuellt erlagt i förmögenhetsskatt eller rätt till annan kompensation. When a person acquires property from another who is not entitled to dispose of the property and the acquirer does not realise or ought not to have realised that the other person does not have a right of disposal, one usually says that the acquisition was made in good faith. The conflict between the original owners claim and that of the person acquiring the property in good faith may be resolved by applying one of two principles, namely the principle of extinction or the principle of vindication. The current Good of Chattels Act (1986:796) is based on the principle of extinction, which means that the person acquiring in good faith becomes the owner of the property and that the former owners title lapses immediately upon the good faith acquisition. However, the former owner is entitled to reacquire the property by redemption. The principle of vindication means that the original owners rights survive and that he without paying for redemption can get the property back from the person who acquired them in good faith. The Commission has been directed to propose rules whereby the original owner should be entitled to get property back that has been stolen from him without paying a redemption price, which consequently means that the principle of vindication should be applied in these cases. In conjunction with this, the Commission has had to adopt a position as regards which cases of other unlawful handling should result in the original owners rights surviving. The formulation of a rule concerning vindication According to the terms of reference of the Commission, the basis for the assignment is that the principle of extinction should also apply in the future when the property has not been deprived from the original owner by an offence and that special rules should apply for stolen goods and property comparable therewith. The Commission has deliberated on whether a rule on vindication should be formulated so that it comprises property that has originally been deprived from the owner by some kind of offence. However, the Commission considers that a rule on vindication that is linked to an offence should be limited to apply primarily to property that has been deprived from the owner by offences involving unlawful dispossession of property. As there are certain obvious disadvantages with linking the rule on vindication to preceding criminal conduct, the Commission ultimately decided not to link the rule on vindication to a number of specified offences, which is common in many countries. Such a rule would have the consequence that a consideration by a court would be necessary to determine criminal law aspects in civil law proceedings. An advantage with the rule that is not linked to particular offences is that it thereby, in the view of the Commission, emphasised that the civil law issues concerning acquisition in good faith should not be intermingled with criminal law assessments. The Commission proposes a rule on vindication that comprises property that has been deprived from the owner by dispossession, i.e. an unlawful taking and by some kind of qualified force, i.e. irresistible compulsion involving imminent danger, known as violent coercion. The rule, which has been designed as an exception to that applicable concerning acquisition in good faith in accordance with the currently applicable Section 2 of the Good of Chattels Act, is linked to the common objective element of dispossession for the offences of theft, robbery, taking a means of transport and arbitrary dispossession, i.e. to the concept unlawful taking. Unlawful taking means an unlawful assumption of possession, which involves a requirement to take possession without the consent of the owner. Thus, if the owner has been deprived of the property by an unlawful taking of possession, a person who thereafter acquires the property cannot obtain title to the property, even if he or she is in good faith in connection with his acquisition. Thus, the rule on vindication does not apply to property that the owner has originally consented to release, even if the consent was in civil law invalid as a result of deceit, coercion, or usury on the part of the other party. The only exception to this applies, as already indicated, when the consent was given as a result of violent coercion. The application of the rule on vindication in the ordinary course of trade The Commission has decided not to propose any exceptions to the rule on vindication for those cases where the goods were purchased in the ordinary course of trade. In this respect the proposal corresponds with the legislation in several countries, including , and . Regard to the consumer may appear to speak for there being some kind of exceptional rule for goods that are purchased in the ordinary course of trade. However, a problem with formulating such an exception is that it would then be necessary to define the concept of ordinary course of trade. Furthermore, such an exception might negatively affect the pre-conditions for competition between various sales methods. Possible rules of exception for the ordinary course of trade only have practical importance to the extent that consumers do in fact purchase stolen goods in good faith in the ordinary course of trade. Another pre-condition is that it is discovered in the particular case that stolen goods are involved. If this is not discovered, any exception would only be of theoretical interest. It has been found that it is very rarely discovered that stolen articles are sold in the ordinary course of trade and that, when this does occur, it would normally probably be difficult to trace and identify the stolen property if was sold to private consumers. Furthermore, it can also be questioned whether there is any need for an exception for consumers in order to ensure that they are held harmless as regards questions of purchase in the ordinary course of trade. If goods that are purchased transpire to be stolen, there is a so- called defect in title. As will be indicated in the following, the Commission proposes that mandatory provisions are included in the Consumer (1990:932) concerning the liability of the seller for defects in title, something which speaks against the need of a rule of exception for the ordinary course of trade. Section 41 of the (1990:931) prescribes that if someone other than the seller has title or is the pledgee or has other similar rights regarding goods that are sold, and the sale has not taken place with the reservation for this right, the goods are subject to a defect in title. The Consumer does not contain any corresponding provision to Section 41 of the . When the Act was passed, such defects were considered to have very limited importance in the case of consumer sales, primarily because the rules concerning acquisition in good faith were considered to involve a strong protection for the consumer. However, if the proposed rule of vindication is introduced and consumers consequently lose the possibility of making acquisitions in good faith of stolen property, a need will arise for an express rule also in the Consumer concerning the liability of the seller for defects in title. The Commission proposes that a mandatory provision be introduced into the Consumer to provide the consumer with the right to the return of what he or she paid for the goods in the event that a third party claims title to the property purchased, i.e. a rule giving the consumer a right to revoke the sales contract. It is also proposed that the rules concerning rectification and re-supply be applicable in such cases. Subject to the pre-condition that the consumer was in good faith concerning the right of the seller to dispose of the goods, he should also be entitled to damages for the so-called positive contract interest, e.g. lost profits, which means that the consumer is put into the same financial position that he would have been had the sale not been completed. The liability of the seller to pay damages will, according to the proposal, be strict. However, the seller shall be entitled to avoid, by contract terms, liability for losses to business operations. It is proposed that the proposed rules for the Consumer relating to the sellers liability for defects in title should, as with the rule under the , also apply to situations when a third party is a pledgee or has other similar rights to the property sold. In such cases, it may be appropriate for the purchaser to request a reduction of the price. According to Section 46 of the Consumer , the consumer is also entitled to direct claims as a result of defects in goods against a business operator at an earlier stage of the distribution chain who has transferred the goods for onward sale, providing the person who sold the goods to the consumer is insolvent or has discontinued his or her business operation or cannot be traced. A corresponding rule is included in Section 56a of the Commission Agents Act (1914:45). The intention is that these rules should also apply as regards defects in title. Cessation of right of vindication There are no rules in Swedish law concerning time limitations on title to chattels. If the legislation no longer recognises acquisition by good faith of the title to chattels in some cases and a rule is not introduced whereby the original owners rights lapse after a set period, that person will consequently be able to retain his or her title to the property for ever. The legislation in all the countries investigated by the Commission have rules involving a limitation of time concerning the exercise of a right of vindication. The Commission considers that it is not reasonable that a person who has a claim of title and who possesses an item of property would forever be in jeopardy of losing it if it should transpire that it is stolen. An eternal right of vindication regarding stolen property would mean that such property would forever be classified as stolen property and thereby never be capable of effective lawful transfer, unless the original owner resumed possession of the property in the meantime. Such a system would not only be in conflict with the interests of trade and business but also mean that the property be the object of receiving offences for an unlimited period. The Commission proposes rules whereby the right of vindication ceases in two different situations. In order not to lose title to the property in relation to the person who acquired it in good faith, the owner must, according to the proposal, demand its return within six months after when he or she learnt or must be assumed to have learnt about the other persons possession of it. Furthermore, a rule is proposed concerning acquisition of title by prescription in the Good of Chattels Act. This would mean that the owners rights of vindication would lapse after the person acquiring in good faith has possessed the property for ten years in continuous good faith. If there are several consecutive holders, a later owner may be credited with the periods of possession of the preceding transferor. The later acquisition may, in contrast to the first acquisition, which must have taken place by transfer, also have taken place by a so-called acquisition. It is proposed that a person who has lost title to a particular item of property as a result of someone becoming the owner to it by prescription should be entitled to a return of the property on payment of a redemption price. A person who has received compensation for the value of the property from a previous person who acquired it shall be entitled to thereafter redeem the property from the current holder If the person who has acquired the property that is subject to the rule on vindication does not still have the property when he is exposed to a claim for vindication, the owner is instead entitled to obtain compensation for the value of the property. The Commission proposes that an owner, who has received compensation for the value of the property from a person who acquired it but who no longer held the property, shall be entitled to obtain the property on payment of the redemption price if it is subsequently traced to a holder who has acquired it in good faith. Determination of the amount of the redemption price According to the proposal of the Commission, an original owner shall be entitled to get property back on payment of a redemption price in three different situations, namely when a person who acquired the property became the owner of the property as a result of a valid acquisition in good faith, i.e. when the rule on vindication is not applicable, when a person who acquired it became the owner of the property by prescription and when the original owner has received compensation for the value of the property by a person who acquired it and who did not still have the property. The Commission proposes that the amount of the redemption price shall be determined in accordance with the so-called value principle, which means that the redemption price is determined to be the value of the property in the ordinary course of trade at the point in time when the right of redemption claim is exercised. According to applicable law, the redemption price is determined in accordance with the so-called principle of reimbursement, which means that the amount of the price shall correspond with the expenses incurred by the person who acquired for the acquisition of the property and its improvement. The principle of reimbursement is considered to provide a better guarantee than the principle of value because it ensures that the original owner really has a financial opportunity to redeem the property. The primary underlying reason for the current principle of reimbursement contained in the Good of Chattels Act is respect for the original owner. If the proposed vindication rule proposed by the Commission is introduced concerning dispossessed property, the original owner will be entitled to reacquire such property without needing to pay a redemption price. In those cases where he needs to redeem the property, he will have been deprived of it in such a that the vindication principle is not applicable. In these cases the original owner has entrusted the property to some other person or in some other way participated in being deprived of the property. In such situations the Commission considers that the balance to be drawn between the interests of the original owner and the person acquiring in good faith should be in favour of the person who acquired in good faith. It is then also reasonable that a person who has been forced to hand over the property is, as far as possible, held harmless. If the original owner shall redeem the property from a person who acquired title to it by prescription, a right of redemption may be raised when the person acquiring has possessed the property for a very long period. The principle of reimbursement is less appropriate when a long time has elapsed since the person possessing the property acquired it. He or she may, for example, have forgotten how much he or she paid for the property and no longer have any documentation concerning the purchase. Even in those cases where an owner who has obtained compensation for the value of the property finds the property with a person who acquired it later and then wishes to redeem it, one can assume that a long time will have elapsed since the owner was deprived of the property. The reasons that have been stated against the principle of reimbursement in connection with redemption or prescription therefore also apply in this situation. The Commission proposes that the applicable time limit for the right of redemption of three months, counted from when the original owner learnt or must be assumed to have learnt about the possession of the person who acquired it, should be extended to six months. In this way, concurrence is reached between the period within which an owner must present a claim for vindication in relation to a person who has acquired the property. The relevance of the proposal for other legislation concerning good faith acquisitions Provisions concerning good faith acquisitions are contained in, among other things, Chapter 25, Section 7 of the Inheritance Code, Section 11 of the Contracts Act, Sections 54 and 55 of the Commission Agents Act (1914:45), Section 14 of the Promissory Notes Act (1936:81), Chapter 3, Section 6 of the Companies Act (1975:1385), Chapter 6, Sections 3 and 4 of the of Records Act and Chapter 2, Section 10 of the Code (1994:1009). The Commission considers that the introduction of a rule of vindication in the Good of Chattels Act does not call for any changes to the above mentioned provisions. The Commission proposes new rules to make it easier for an aggrieved party to have stolen goods returned more quickly The Commission proposes that, in conjunction with the transfer to the principle of vindication as regards stolen goods, a rule is introduced into Chapter 27 of the Code of Judicial Procedure concerning seizure, according to which the prosecutor or criminal investigation leader should be able to decide that a seized object should be returned to an aggrieved party, provided it is manifestly clear that this party has a better right to the object than the person from whom the property was seized. In conjunction with a seizure being implemented, the person from whom the seizure is made should be notified that a decision may be made that the property should be handed over to an aggrieved party. According to the proposal, if such a decision is subsequently made concerning the release of the object, it is only required that immediate notification of the decision is given to the person from whom the item was seized. That person may require the decision to be referred to the court. In order that the person from whom the seizure has been made should have a reasonable time to request that the decision is considered by the court, the seizure should not be revoked and the property handed over to the aggrieved party before three weeks have elapsed following the notification of the decision being despatched. During this period, the person can thus request the court to consider the decision. Practical application of the new rules Finally, the Commission deals in a separate section with some problematical situations that may arise in connection with the practical application of the Good of Chattels Act, as worded according to the proposal. First, the application of the Act in trials is discussed together with certain rules concerning adducing and presenting evidence that may arise in that connection. It is also pointed out that, as the proposal basically involves the possibility of acquiring title to stolen goods by good faith acquisition coming to an end, the scope of the offence of receiving stolen goods is to some degree extended. It is also pointed out that a person who unlawfully disturbs the possession of another in order to himself or herself exercise rights commits the offence of arbitrary self help and that a person who has a better right than the holder to an item of property may not enforce the transfer of possession himself or herself, and that the proposed rule on vindication does not involve any changes in this connection. In this section there is a discussion of the issue of the relevance of the circumstances surrounding possession for the opportunity to make an acquisition in good faith in accordance with the proposal. It is claimed that an assessment of the Act by which the owner has been deprived of the property may be significant as regards his or her possibility to get the property returned. Under another heading in this section, the scope of application of the proposed rules concerning seizure in the Code of Judicial Procedure and the proposed rule on vindication are compared. In this connection it is concluded that the slight difference in the scope of application of the respective rules is not expected to cause any manifest inconvenience in practice. Furthermore, there is a discussion of: situations involving property in respect of which an owner claims a right of vindication having increased or reduced in value during the time it has been in the possession of a person who acquired it in good faith; when the property is not complete; and when it has been substituted by other property or altered in a fundamental way. The right to the yield of the property is also discussed. The importance of the proposed rule on vindication for pledgees rights in chattels are dealt with, as is the opportunity to make an acquisition in good faith through a right of retention. It is claimed, according to information received, that it will not be possible to take out insurance that provides indemnity to those who are compelled to surrender property as a result of a vindication claim, and also that the tax legislation does not give a person who is forced to surrender property any right to a repayment of what he or she may have paid in wealth tax on the property or rights to other compensation. lag om ändring i lagen (1986:796) om godtrosförvärv av lösöre Härigenom föreskrivs i fråga om lagen (1986:796) om godtrosförvärv av lösöre dels att rubriken närmast före 2 § samt 2–6 §§ skall ha följande lydelse, dels att det i lagen skall införas en ny paragraf, 3 a §, samt närmast före 3 a § en ny rubrik av följande lydelse. Har någon förvärvat lösöre genom överlåtelse från någon annan som hade egendomen i sin besittning men varken var ägare till den eller behörig att förfoga över den på det sätt som skett, får förvärvaren äganderätt till egendomen, om han har fått den i sin besittning och var i god tro. Har någon förvärvat lösöre genom överlåtelse från någon annan som hade egendomen i sin besittning men varken var ägare till den eller behörig att förfoga över den på det sätt som skett, får förvärvaren äganderätt till egendomen, om han har fått den i sin besittning och var i god tro (godtrosförvärv). En förvärvare skall anses ha varit i god tro, endast om det är sannolikt att egendomens beskaffenhet, de förhållanden under vilka den utbjöds och En förvärvare skall anses ha varit i god tro endast om det är sannolikt att egendomens beskaffenhet, de förhållanden under vilka den utbjöds och omständigheterna i övrigt var sådana att han inte borde ha misstänkt att överlåtaren saknade rätt att förfoga över egendomen. 1 Senaste lydelse 1998:1574. omständigheterna i övrigt var sådana att han inte borde ha misstänkt att överlåtaren saknade rätt att förfoga över egendomen. Vad som sägs om godtrosförvärv i 2 § första stycket gäller inte, om ägaren hade frånhänts egendomen genom att någon olovligen tagit den eller tilltvingat sig den genom våld på person eller genom hot som innebar eller för den hotade framstod som trängande fara.