Sakrättsligt skydd som vilseledd? Om subjektiva inslag i traditionsprincipen

Generally, assessments regarding third party protection of property rights, rights in rem (Sw. sakrätt), are based on objective and verifiable circumstances. Traditionally, in accordance with the legal doctrine of traditio (Sw. traditionsprincipen), the deter-mining factor for rights in rem is the physical location of the relevant property. The core element, under this doctrine of traditio for establishing real property rights, is the cut-off of disposition rights (Sw. rådighetsavskärande), meaning that a transferor or pledgor’s control over relevant assets must be discontinued (save, that this requisite is not always enforced). In the event a transferee or pledgee has been deceived into rely-ing on false facts regarding actual rights of disposition, the question, whether protected property rights could be based on subjective grounds alone, may arise. The transferee or pledgee may have been misled by the transferor, pledgor or other, into believing that disposition has been sufficiently cut-off.

As shown by Swedish case law concerning, e.g., a pledgee’s accidental loss of posses-sion of security assets, a party’s subjective perception of disposition rights may in some cases have bearing on assessments of real property rights. Under the doctrine of traditio, a deceived party’s subjective perception of possession may affect an assess-ment on whether the necessary cut-off of disposition has occurred. The incorporation of subjective perceptions should be viewed as an extensive interpretation of the doc-trine of traditio in its current form and must be justified by an explicit purpose, such as to protect a pledgee from unexpected loss of rights (Sw. oväntad rättsförlust). Howev-er, to state that subjective perceptions of possession exists as a standalone element for establishing protected property rights in general (i.e., parallel to the doctrine of tradi-tio), would be a too far-reaching conclusion under existing case law.

An extended application of the doctrine of traditio, as described above, may appear to create a "fair" legal position, since deceived parties would not have to suffer unex-pected losses of property rights. However, the benefits threat to overshadow the corre-sponding disadvantages following such extended applications of the doctrine. The negative resulting effects are, in my opinion, significant and should therefore not be overlooked when assessing the legal development of this area. The practical imple-mentation of subjective perceptions as a trigger for protected property rights would, for a number of reasons, be problematic. Expanding the scope of the doctrine of tradi-tio, enabling protected property rights on subjective grounds in some cases but not all, would lead to increased complexity in Swedish proprietary law.

In order to determine whether subjective elements should have bearing on property rights in rem, one should consider whether the doctrine of traditio should adapt to those applying it, or instead, if the participants should adapt to the doctrine in its cur-rent form. As stated in the final conclusions of this essay, I question a modification of the scope of the doctrine of traditio, as the modification would be at the expense of judicial predictability.