Abuse of rights

Abuse of the right is called the situation that occurs when the holder acts in such a way that his conduct is consistent with that granted by the right, but its exercise is contrary to the purposes of the legal system and exceeds the limits imposed by the good faith, morality and good customs or the social and economic purposes of Law. When this situation occurs, it is the task of the magistrates to assess in each specific case whether there was genuinely harmful conduct and, if appropriate, seek an actio in rem verso and set compensation.

In Argentine Law, this institute is established in article 10 of the Civil and Commercial Code of the Nation as it establishes that " The regular exercise of one's own right or the fulfillment of a legal obligation cannot constitute any act as illegal. The law does not protect the abusive exercise of rights. Such is considered to be the one that contravenes the purposes of the legal system or the one that exceeds the limits imposed by good faith, morality and good customs. The judge must order what is necessary to avoid the effects of the abusive exercise or the abusive legal situation and, if applicable, seek the restoration to the previous state of fact and set compensation."

Historical overview

Common Law

The abuse of rights, has its origins, although not as such, in Roman law, whose figure was the ius abutendi, where any right could be used, the only limit being the given by the praetor, which he used to equate with equity, avoiding abusive rights. In medieval times, the theory of emulation (aemulatio vicini) was elaborated by Cino da Pistoia and Baldo degli Ubaldi, it is the way that a subjective right in a disguised way had the intention not to make law but to of causing damage or annoyance to the neighbor, especially in acts of building, construction and water. Although the validity of the abuse of rights is not appreciated, there was at least the original idea of the same, since it was a subjective right applied with the hidden malicious or fraudulent intention (animus vicino nocendi) of causing harm to a person or property of others, these intentions were generally associated with neighborhood disputes.

Another medieval theory that preceded the abuse of rights was the theory of inmissions, here it no longer took into account the intention but the result of the action. In this the character was not subjective but objective. This theory also had to do with neighborhood relationships, use of property and conflicts that the neighbor brings, having the greatest result in the legal field at the time of the industrial revolution. Although all of these are antecedents of the abuse of rights, none would fall within the abuse of rights itself.

French jurisprudence

For the first time the figure of abuse of rights appears in French jurisprudence, although the Napoleonic Code of 1804 does not accept it, the same French jurisprudence with the passage of time begins to take this figure into account.

The first known was that of the Court of Appeals of Colmar in 1855, which reads as follows: «Although it is true that the property right is a right in some way absolute, authorizing the use of this right the use and abuse of the thing, it must be taken into account that this right must be limited by the satisfaction of a serious and legitimate interest. Thus, the court ruled on the conflict between two neighbors, one of whom, making use of his property, built a chimney (unused) that blocked the neighbor's window. The sentence was to demolish the chimney.

The second was the so-called Lyon sentence of the year 1856: a neighbor installed a suction pump on his land to empty his neighbor's water pond where the animals drank from it, the water he drew spilled freely into the field without any particular use, the court understood that this was an abuse of a subjective right and forced to remove the extractor pump and compensate the neighbor for the damage caused. Therefore, at the end of the XIX century, the first sentences (not yet theorized) of abuse of rights were produced.

French doctrine

The theory of abuse of rights, as such, was formulated at the beginning of the 20th century. Its main promoter was the Frenchman Louis Josserand. In his opinion, no right was absolute and the exercise of the powers granted by law should be in accordance with the spirit that prompted its sanction. The theory of abuse of rights maintains that subjective rights are not absolute, but relative, that is, they must be exercised within certain limits, such as the purpose that the law had in view when recognizing that subjective right, or the limits imposed. for good faith.

Contrary to this theory, we find Marcel Planiol. Planiol maintained that if there is abuse, there is no right. In his opinion, an abusive act would be both compliant and contrary to law, and this was impossible.

Systems

The theory of abuse of rights can be defined by different systems.

First of all, we find the subjective system, which emphasizes whether the owner of the right acted with intent or negligence.

The objective system, on the other hand, considers that an act is abusive if it exceeds the objectives of the law that grants such rights.

Subjective systems

Intentionality

Within subjective systems, we find the one that is guided by intentionality, that is, that maintains that an act is abusive if there is an intention to harm.

Neglect

Another interpretation is guided by negligence. This is also found within subjective systems. According to this, an act is abusive if the exercise of the right was carried out with fault.

Lack of Legitimate Interest

Both systems, that of intentionality and negligence, equate the abusive act with the illegal act.

To overcome this problem, also within the subjective system, there is consideration for lack of legitimate interest. This means that an act is abusive, also when there is a lack of utility. This utility is not only economic but of any kind, it is any benefit that can be obtained from the exercise of the rights. The appreciation of utility is what makes it a subjective subsystem.

Objective systems

Exercise contrary to social and economic purposes

Already in the objective systems, we find, in the first place, the exercise contrary to the social and economic purposes. In this way, the theory seeks to determine what the purposes of the law were when granting the rights to the owner and thus, verify if the exercise was in accordance with these.

An exercise contrary to good faith, morality and good customs

Finally, without needing much explanation, one last system considers abusive acts to those that are contrary to good faith, morality and good customs.

Cases by country

Argentina

Regarding the Argentine legal system, we see that the Vélez Sarsfield code, in its articles 1071, 2513 and 2514, denies the theory of abuse of rights. The majority doctrine supported this affirmation.

Article 1071°. The exercise of one ' s right or the fulfilment of a legal obligation cannot constitute an unlawful act.
Article 2513°. It is inherent to the property, the right to own the thing, to dispose of or to use it, and to enjoy it according to the will of the owner. He can denaturalize it, degrade it or destroy it; he has the right to accession, to vindicate, to build upon it real rights, to perceive all its fruits, to prohibit another from serving it, or to perceive its fruits; and to dispose of it for acts among the living.
Article 2514°. The exercise of these powers cannot be restricted to you because it would result in depriving a third party of some advantage, comfort or pleasure, or bringing him some inconveniences, so that he does not attack his property right.

Civil Code of the Argentine Republic. Pre-law reform text 17.711

In the reform projects we see, regarding the theory, that the project of Bibiloni, who was an opponent, proposes an even more restrictive article.

On the other hand, the 1954 Bill admits abuse, which is defined as such if it is contrary to the purposes of the law that grants rights or is contrary to good faith, morality and good customs.

In the reform of Law 17,711 (B.O.26/4/1968), the theory of abuse of rights is admitted in the civil code. Defines an abusive act through finalist theory and contrary to good faith, morality and good customs.

However, within the national doctrine, there are two main currents. The first, which maintains that what the reform does is make the abusive act equal to the illegal act, so that the imputability of the owner can be sought. In this way, the jurisprudence that follows this doctrine held that there is no abuse of the right when in the regular exercise of a right emanating from a contract, there is no intention to harm, the most onerous route is not used, nor is the attitude unreasonable..

The other doctrinal current indicates that if the abusive act were identical to the illegal act, the theory of abuse of rights would be useless, since the legal system always sanctioned the illegal act. Instead, it maintains that it is enough that the act exceeds the limits of article 1071 2nd part:

Article 1071°. The regular exercise of one ' s own right or the fulfilment of a legal obligation cannot constitute an unlawful act.
The law does not protect the abusive exercise of rights. Such a person shall be deemed to contravene the purposes that he had in his sight by recognizing them or by exceeding the limits imposed by good faith, morals and good customs.

Civil Code of the Argentine Republic. Text updated by law 17.711

The jurisprudence of this doctrine indicates that an act is abusive, from the subjective point of view, executed with the intention of harming or without obtaining any benefit. And it is from the objective criterion, when it is exercised in a non-functional way, against the general purposes of the law, contrary to the purposes that the law took into account when recognizing it, or exceeds the limits imposed by good faith, morality and good traditions.

After the 2015 reform, the Civil and Commercial Code establishes rules against abuse of rights in articles 10, 11 and 14:

Article 10. Abuse of the right. The regular exercise of one ' s own right or the fulfilment of a legal obligation cannot constitute an unlawful act.

The law does not protect the abusive exercise of rights. It is considered such that it would contravene the purposes of the legal order or that it exceeds the limits imposed by good faith, morals and good customs.

The judge must order what is necessary to avoid the effects of abusive exercise or the abusive legal situation and, if appropriate, seek replenishment of the previous de facto state and establish compensation.

Article 11. Abuse of dominant position. Articles 9 and 10 apply when a dominant position is abused in the market, without prejudice to the specific provisions provided for in special laws.

Article 14. Individual and collective rights. This Code recognizes:

(a) Individual rights

(b) rights of collective incidence.

The law does not protect the abusive exercise of individual rights when it can affect the environment and the rights of collective incidence in general.

Civil and Commercial Code of the Nation

The text maintains the previous broad criteria, with three assumptions: when it goes against good faith, when it affects morality, and when it goes against good customs. Or, when the purpose of the legal system is violated (not limited to the historical or originalist intention, see art. 2). When referring to the dominant position, in the Fundamentals (III, 6, 4) special emphasis is placed on clarifying that it refers to the dominant position of the "market". The environment and the rights of collective incidence are also protected, in line with article 43 of the National Constitution.

The code includes guidelines for the function of the judge: preventive or precautionary (as long as he must arbitrate the means tending to avoid the effects of the act), restorative (or recomposition, return to the state prior to the abusive exercise of the right) and compensation or compensatory.

Chile

Chilean literature has slightly developed this theory. The jurisprudence has recognized the theory of abuse of rights, specifically in non-contractual matters. In contractual matters, it has been incorporated through the principle of good faith, since the abuse of the right would constitute precisely a breach of the requirement of good faith.

Because the abuse of rights is not typically formulated in the law, it has basically been understood to consist of misusing a right, that is, with negligence or fraud, generally based on a crooked interpretation of the law. law.

Spain

The Spanish Civil Code, published in 1889, regulates the abuse of rights and prohibits it in article 7.2 as follows:

The law does not protect the abuse of law or the antisocial exercise thereof. Any act or omission which by the author ' s intention, for its object or for the circumstances in which it is carried out manifestly exceeds the normal limits of the exercise of a right, with damage to the third party, will result in the corresponding compensation and the adoption of judicial or administrative measures that prevent the persistence of the abuse.

The existence of an apparent differentiation between:

• Abuse of law, which will be any action, protected by the coverage of a subjective right, causes harm to a particular interest.
• Antisocial exercise, which will be defined as any action, which is protected by the coverage of a subjective right, causes damage to a social interest.

Professor Ignacio Ara Pinilla agrees to support the synonymous relationship between both terms, since the affront to private interest constitutes an affront to social interest, with its greater or lesser specificity, to the extent that the individual is integrated into a community.

Court Presentation

Finally, in a judicial presentation, it is not enough to say that there was an abuse of the right, but it is necessary to state what the right is, what the right is abused and what limits are exceeded in the alleged abusive act. In addition, it is necessary to analyze why the exercise of the right is not regular.

The judge, detecting abuse of the right, may not act ex officio unless that abusive exercise of the right affects the State or constitutional guarantees (that is, the subjective right affects public order).