En svårfångad vårdplikt : Om ansvaret för tredje mans lösöre i konkursboets besittning

Bankruptcy trustees regularly, throughout the bankruptcy proceeding, encounter goods belonging to third parties that are in the possession of the bankruptcy estate. The question of whether or not the trustee or estate has a duty of care for this type of property is, however, virtually unregulated within Swedish law. The answer to the question could be of practical concern for both third parties and the involved bankruptcy actors (i.e., the bankruptcy trustee and bankruptcy estate). The bankruptcy trustee, for example, is mandated by the bankruptcy act to only act in the best interests of the creditors, which could possibly prohibit him from providing the necessary care for goods belonging to third parties. Furthermore, if an investigation would show that the bankruptcy actors have no responsibility to care for goods belonging to third parties, it would mean that these belongings are unprotected, up until the point the owner collects his property. The uncertainty revolving these issues warrants an investigation. This thesis aims at providing knowledge about the nature of responsibility the bankruptcy actors have to care for goods belonging to third parties that are in the possession of the bankruptcy debtor at the time of the bankruptcy order. It is also intended to critically discuss the findings of the investigation. The investigation covers several legal issues in the pursuit of this aim and is, following the introduction, divided into four chapters. Chapter 2 examines the concept of a duty of care and identifies the varieties of duties of care present in Swedish law. Chapter 3 addresses the question of whether the bankruptcy actors have a duty of care for the belongings of third parties. Chapter 4 deals with the mandate of the bankruptcy trustee and the ability for him to care for goods belonging to third parties within his mandate. Chapter 5 concludes the investigation and discusses the findings. The inquiry shows that the bankruptcy estate most likely has a duty of care regarding the belongings of third parties within the estate’s possession. The investigation also shows that it is likely the bankruptcy estate, and not the trustee, who bears this responsibility and who has an indemnity liability towards the third party in the event of his belongings suffering damages. The analysis shows that the bankruptcy trustee likely has a legal mandate, and at times even an obligation, to care for third party goods. I conclude by noting that the result of the investigation is mired in legal uncertainty and that one could make the argument for the necessity of clarification through legislation. However, the fact that the number of conflicts regarding this issue seems to be low, points towards the possibility of the conflict being handled well as is by the parties involved, which would seem to speak against the need of further legislation.