Fordrans uppkomst inom insolvensrätten

Sammanfattning: The question of when a claim arises is quintessential in Swedish insolvency law. The claim has to have arisen before a certain critical time point to be included in insolvency proceedings, a composition (in a reorganisation) or a debt relief. The question if the claim has arisen before a critical time point is also used concerning recovery to the insolvency estate, set-off and to determine whether a post-commencement claim exists. The thesis delves into the question of the rise of the claim in Swedish insolvency law. In recent years, there have been numerous cases from the Supreme Court of Sweden concerning the question of the rise of the claim. The Court has, in several of these cases, stated that the question of the rise of the claim mainly depends on the purpose of the specific provision. This way of reasoning is called functionalism in the thesis. Functionalism creates an openness towards arguments and principles which are relevant for the specific provision. Accordingly, principles and arguments of insolvency law become important to determine if a claim has arisen as regards to a provision within insolvency law. However, there are other ways of approaching the issue. For example, the doctrine of conditions and the principle of the substantial ground of the claim have also been used in the case law from the Supreme Court of Sweden. To determine whether a claim has arisen, the doctrine of conditions opens the door for an assessment based on the rules on the formation of contracts, while the principle of the substantial ground mainly relies upon the law of obligations. Insolvency law and the law of obligations are thus intertwined in the question of when a claim has arisen. The different ways of reasoning are studied in detail in the thesis. A comparison is also made between their respective structure, as well as of the different normative assessments they rely on. How the Supreme Court of Sweden superordinated functionalism in NJA 2009 s 291 is also studied. The study of the different ways of reasoning forms the basis for the main part of the thesis and its topic, which is: The rise of the claim as regards to the critical time points within insolvency law.

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