Lån med elektronisk underskrift. En undersökning av bevisbördans placering vid invändning om obehörig användning - särskilt i ljuset av Högsta domstolens avgörande i NJA 2017 s. 1105. ; Loan with electronic signature. An examination of the position of the burden of proof in the event of an objection of unauthorised use – in particular in the light of the Supreme Court’s ruling in NJA 2017 p. 1105

In the court case NJA 2017 p. 1105, the Swedish Supreme Court has considered the question of the placement of the burden of proof in a situation where the holder of an advanced electronic signature objected that the signature had been used unauthorizedly by another person to sign an electronic loan commitment. The purpose of the essay is to clarify and provide an understanding of the current burden of proof rule. The purpose of the essay also includes providing an understanding of how the current burden of proof rule relates to previous practice regarding the placement of the burden of proof in the event of an objection of forgery of signature. In the court case NJA 1976 p. 667, the Swedish Supreme Court has stated that a creditor, in the event of a debtor's objection to forgery of signature relating to receipt, that the creditor should make the debtor's signature predominantly probable. The burden of proof rule has been applied in some court of appeal decisions, including in the case of an objection of forgery of signature regarding a written guarantee and promissory note. Burden of proof rules apply only to legal facts. The question regarding who has written a signature on a written proof of claim, such as a receipt or a promissory note, is not a legal fact. The starting point is therefore that a burden of proof rule should not apply to an objection of forgery of signature. One interpretation of the court decisions is that the question of the authenticity of the debtor's signature has been regarded as a presumptive fact in a presumption of proof rule and that the legal consequence has been that loan has been presumed. In the case NJA 2017 p. 1105, the Swedish Supreme Court has stated that if a holder of an advanced electronic signature raises an objection of unauthorized use of the signature, the assessment shall take place in two stages. It must first be examined whether it is the signature in question that has been used. After that, it must be examined whether it is the debtor who used the signature. Since .