Obehörig vinst -- en möjlighet eller onödighet?

Abstract

Summary Unjustified enrichment is an obvious part of the jurisprudence in the majority of countries in Europe. But not in the Nordic countries, and certainly not in Sweden. This depiction of the Swedish posture is based mostly on Hellner’s thesis from 1950. A lot has happened since then, not to mention Sweden’s entry in to the EU. It is therefore of great importance to awaken the debate about unjustified enrichment and its application in Swedish law. Does unjustified enrichment constitute a legal principle or a judicial political argument? What are its prerequisites and how can these be understood? An analysis of possible answers to these questions may shed new light over, what have been for some time, a denounced concept. The answers are to be found in not only in judicial doctrines, but in legislation and court cases. Because of the niggardly Swedish attitude an outlook is made in to the EU to show eventual contrasts regarding unjustified enrichment. The EU is one of the most influential international actors in terms of the Swedish judicial apparatus. For example a Norwegian doctor of Laws presents an innovative and legitimate systematization of the different claims that can be grounded on unjustified enrichment. The systematization is based on that unjustified enrichment should be an own discipline, distinguished from both contract law and tort law. A logical following-up is whether unjustified enrichment is necessary or not in Swedish law. Such a discussion is intelligible based on a rather subjective point of view. More recent judicial doctrine seems to be much more positively disposed towards unjustified enrichment as a legal principle or judicial political argument, in comparison with Hellner. This might be due to the influence of the EU and its member states. Other important factors may be the court cases that recently have enabled the possibility to plead for compensation based on unjustified enrichment in court, in a completely different manner than before. Although a variety of statutory provisions indicates that unjustified enrichment is already a part of Swedish law. Yet traces from the Scandinavian realism can be found in both judgements and legislations, since the notion unjustified enrichment is rarely mentioned directly. The discussion of unjustified enrichment’s necessity or uselessness shows both its weaknesses, but also obvious strengths. Limiting unjustified enrichment’s application is essential to receive any recognition, but its necessity is indisputable, particularly under consideration that it de facto already constituted as part of Swedish law.