Dependent guarantees (e.g., suretyship), has been sparsely commented on in Swedish legal literature and questions regarding certain main characteristics of the obligation have not been examined in detail. Despite this, the security is of practical importance and a considerable number of cases regarding guarantees have been handled in the courts. A typical situation is that a guarantor argues that his obligation should be reduced due to circumstances pertaining to the secured obligation or the relationship between the parties of the secured obligation. When judging such cases – and when interpreting judgments of such cases – the guarantee’s character as dependent to the secured obligation could be of im-portance. If the guarantee is dependent to the main obligation, changes or flaws in the main obligation or the relationship between the parties to that obligation could be used as an argument for reducing the guarantor’s obligation. However, the meaning of this dependency is quite unclear. In essence: the legal effects (if any) of the dependent character are debated and have not been examined thoroughly. Especially according to a certain “practical” perspective, the dependency is simply a definition and an abstraction that cannot be used to adjudicate specific cases; instead, practical considerations should prevail. This perspective is a reaction against an older “theoretical” perspective, in which the dependency of the obligation was seen as a valid reason for deciding cases and defining and organizing obligations. This conflict is familiar in Scandinavian legal literature; critique of the use of definitions, abstractions and legal concepts in legal reasoning has in many ways shaped the legal discourse of the 20th century. In this thesis, the meaning of – and different perspectives on – the concept of dependency is examined with the purpose of providing both knowledge and dis-cussion of it. In chapter 2, the definitions of dependent guarantees are examined with focus on their dependent character. The discussion is continued in chapter 3, where the abovementioned practical and theoretical perspectives are investigated. In chapter 4, the influence of the concept of dependency in practice is assessed, mainly by analyzing cases from the Swedish Supreme Court. Finally, in chapter 5, the results are summarized and an idea that the different perspectives could be seen as an expression of the difference between interpretation and argumenta-tion, is repeated and elaborated. The inquiry shows that the examined types of guarantees are dependent in an economic sense, in that the purpose is to secure another obligation, but that the legal implication of that circumstance is debated. Relevant precedents form the Swedish Supreme Court could be interpreted differently and does notconclusively show whether the concept of dependency was applied as an argu-ment or not. The main accomplishment is that the thesis offers a thorough anal-ysis of the concept of dependency and different perspectives on its feasibility as a legal argument. Other texts on the subject are not as detailed, especially regard-ing the underlying theoretical or ethical reasons for ascribing the concept of de-pendency importance or not. Hopefully, the results can be of interest for further studies of dependent guarantees and used as a basis for deciding whether to use the concept of dependency as a legal argument or not.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-209546 |
| Date | January 2022 |
| Creators | Kieri, Oskar |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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