Rättsverkningar av avtalade överlåtelseförbud - En studie om överlåtelseförbuds rättsverkningar i sakrättsligt respektive obligationsrättsligt hänseende

Sammanfattning

The contract constitutes the legal form that aims to regulate legal relationships and is probably the most fundamental phenomenon within the framework of relations between legal subjects. The definition of a contract is a legal act that expresses a declaration of will. The right of ownership has been described as the strongest of the property rights. When people talk about property rights, it is probably the Western private capitalist definition that is referred to. This means that the owner of the property has the right to dispose of if freely, which includes that the owner has the right to transfer the property as well as to pledge it. The concept of the term “elasticity of property rights” has been defined as restrictions in the individual’s property rights imposed by their own or other’s legal acts. This gives the owner the right to stipulate conditions through prescribed restrictions on the right of disposal, which means that the owner can regulate how the scope of future ownership rights should be designed. Considering this, it can be stated that the ownership right includes a right for the property owner to restrict this right accordingly. Such restrictions mean that the property is subject to a so-called prohibition on transfer. In light of what is stated above, there is no such thing as an unrestricted right of ownership as the general public is likely referring to. There are no explicit statutory rules regarding the prohibition on transfer and its legal effects. This have given rise to problems relating to its legal effect against the contracting parties and against third parties. The present study has examined the extent to which the legal effects of a transfer prohibition are given importance. Conditions that prescribe a prohibition on transfer are mainly stated in wills and deeds of gift, that is to say, so-called gratuitous transfer prohibitions. A prohibition of this kind can nevertheless be prescribed by a purely commercial contract, that is, an onerous prohibition on transfer. It has been important throughout the development of Swedish law to distinguish between the two forms of transfer prohibitions because the legal effects that follow from these prohibitions have differed. The Swedish enforcement system fulfils a central societal function as it enables the maintenance of the economic system through the enforcement of obligations by an executive authority. An obligation arises through legislation or a contractual agreement and often includes a payment obligation for the obligated party. In cases where the obligated party does not fulfil their obligations, the entitled party can use execution through attachment proceedings. The purpose of the attachment procedure is for a creditor to be paid through the property that is subject to attachment. The main rule states that all property belonging to the debtor is attachable. The circumstances are further complicated by the fact that regulations such as prohibitions on transfer, also prohibit attachment. Despite the lack of legal regulations, it is stipulated in the Swedish Enforcement Execution Code that a valid prohibition on transfer protects this property from attachment. The Code in question is where the legal effect against third parties is mainly expressed. The perception regarding the legal effect of an onerous transfer prohibition has changed throughout Swedish legal history. Before 1993, the prevailing view was that such a condition could have third-party effect if it had been prescribed in accordance with the transferor’s interest. In 1993, the Swedish Supreme Court issued a ruling that changed this principle. Nowadays, onerous prohibitions on transfer are not granted any legal effects at all. The view concerning the legal effect of a gratuitous transfer prohibition between the contracting parties has been fairly uncontroversial. The main rule is that such a clause is valid between the contracting parties. Regarding its third-party effect, the prevailing view has changed. A contributing factor may be that both case law and legal literature have discussed the concept of third party from two perspectives. On the one hand, it includes a third party in the capacity of a creditor and, on the other hand, a third party as a new acquirer. Concerning the legal effect in relation to a creditor, both case law and doctrine have been relatively clear. Such a regulation must be respected by the Enforcement Authority. However, the legal situation is not as clear in the sense of a new acquirer. Support for both views has been noted in the legal literature. This means that the legal effect against a new acquirer has been recognized as a consequence, as well as the view that a transfer prohibition should not have any legal effect against third parties. The analysis in this thesis has thus primarily examined case law. The conclusion is therefore that the legal situation is still unsatisfactory with respect to the fact that the Swedish Supreme Court has only expressed itself in general terms.