Retentionsrätt och Legal Panträtt: Två Rigida Begrepp i ett Flexibelt Rättssystem? En studie om hur retentionsrätt och legal panträtt kan hanteras med hjälp av ett funktionalistiskt angreppssätt

Abstract

Possessory liens and legal liens are two securities that has been the subject of debate from legal scholars for quite some time. Possessory liens are often viewed as a weaker security compared to legal liens. However, upon closer examination it turns out that possessory liens in most cases provide the the same opportunity to sell the property withheld as security. This possibility makes possessory liens resemble, if not be identical to, legal liens. Both securities arise by operation of law and grant the right to both withhold and sell property in the event of non-payment. This has led to uncertainty about whether there is a substantial difference between the two securities. This thesis explores how the conceptual issues surrounding possessory liens and legal liens can be addressed by using a functional perspective of the legal system. By critically analyzing legislation, case law, preparatory works and doctrine, the thesis aims to contribute to a deeper understanding of these securities and how they could be understood in today’s legal landscape where the boundaries of these concepts are often blurred and their practical applications may be far more flexible than previously assumed.