Abuse of rights

In civil law jurisdictions, abuse of rights (also known as Prohibition of Chicane) is the exercise of a legal right only to cause annoyance, harm, or injury to another. The abuser is liable for the harm caused by their actions. Some examples of this are abuse of power, barratry, frivolous or vexatious litigation, a spite fence, forum shopping, abuse of process, malicious prosecution, tax avoidance (vs. anti-avoidance rules, step transaction doctrine, economic substance), etc. The principle is a creature of case law and was expanded from the neighborhood law doctrine of aemulatio vicini under the jus commune. This principle departs from the classical theory that “he who uses a right injures no one”, instead embracing the maxim “a right ends where abuse begins” (= le droit cesse où l'abus commence).[1]

Foundation

The abuse of rights principle is laid out in German law by the so-called Schikaneverbot ‘ban on vexatiousness’ (BGB §226). It reads as follows:

Die Ausübung eines Rechts ist unzulässig,
wenn sie nur den Zweck haben kann, einem anderen Schaden zuzufügen.

The exercise of a right is unlawful if its purpose
is only to cause harm to another.

Article 2 of the Titre préliminaire to the Swiss Civil Code states:

Chacun est tenu d'exercer ses droits et d'exécuter ses obligations selon les règles de la bonne foi. L'abus manifeste d'un droit n'est pas protégé par la loi.

Everyone is expected to exercise their rights and fulfill their obligations according to the rules of good faith. The manifest abuse of a right is not protected by statute.

Articles 19, 20 and 21 of the Civil Code of the Philippines state that:

  • Art. 19. “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.”
  • Art. 20. “Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.”
  • Art. 21. “Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

Conditions

At least one of four conditions is required to invoke the doctrine:[2]

  • the predominant motive for exercising the right is to cause harm
  • no serious or legitimate interest exists for judicial protection
  • the exercise of the right is contra bonos mores or violates good faith or elementary fairness (equity)
  • the right is exercised for a purpose other than its intended legal purpose.

The principle does not exist in common law jurisdictions.

In Scots law (which is mixed civil/common law jurisdiction), abuse of rights is called aemulatio vicini [3]

See also

References

  1. ↑ Marcel Planiol, Traité élémentaire de droit civil, 11th edn., No. 871, 1939.
  2. ↑ "Abuse of Rights". uslegal.com.
  3. ↑ Elspeth Reid. "Strange Gods in the Twenty-First Century: the Doctrine of Aemulatio Vicini".

Further reading

  • Bolgár, Vera (1975). "Abuse of Rights in France, Germany, and Switzerland: A Survey of a Recent Chapter in Legal Doctrine". Louisiana Law Review. 35 (5): 1016–1036.
  • Michael Byers, “Abuse of Rights: An Old Principle, A New Age”, McGill Law Journal 47 (2002): 389–431.
  • A. Kiss, “Abuse of Rights”, in Encyclopedia of Public International Law, vol. 1, ed. R. Bernhardt. Amsterdam: North-Holland, 1992.
  • Elspeth Reid, “The Doctrine of Abuse of Rights: Perspective from a Mixed Jurisdiction”, Electronic Journal of Comparative Law, 8(3) (October 2004), <http://www.ejcl.org/>


This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.