The scientific-practical Law Journal
“Almanac of Law” Volume 14 (2023), 453- 457 p.
Ivanov V. P. Evolution of the institute of abuse of right.
The abuse of right is an important institution in the legal system. Although the concept and methods of its use may differ from country to country, the basic concept remains the same: an individual cannot use his legal rights to harm others or to achieve an illegal goal. The historical background of the institution of abuse of right to be traced on the example of Roman law, which introduced the concepts of contra bonos mores (from Latin to harm the moral well-being of society) and in fraudem legis agere (from Latin to act contrary to the law), which today are considered forms of abuse of right. It is important to note that the doctrine of the «abuse of right» in ancient Greece was limited by the fragmentary nature of the surviving legal and philosophical texts. Unlike Roman law, which had a complex legal system and was represented by numerous legal works, ancient Greek legal thought is known mainly through philosophical treatises and historical narratives. As a result, specific discussions of «abuse of right» in ancient Greek sources are unfortunately hard to come by. However, the general ideas of moderation, concern for others, and the pursuit of justice nevertheless indicate a concern and responsible use of rights in ancient Greek society, even if this concept, compared to Roman law, was not clearly formulated. In the Middle Ages, in the Anglo-Saxon law, the theory of abuse of rights developed through the concepts of equity.
In the period of recent history (from the middle of the XV century to the end of the XIX – the beginning of the XX century), this institute continues to develop and adapt to the changing conditions of modern society. Some countries, such as France, were among the first to attempt to legislate abuse of rights in their Civil Code. Over time, other jurisdictions have incorporated the statute of abuse of right into their domestic legislation. This concept is also reflected in international law, where it can be applied in the context of human rights, private law, and other fields. The modern understanding of the abuse of right assumes that the use of the right can be recognized as abuse if it does not correspond to its true purpose, harms the interests of other persons or society, and does not comply with the principle of justice.
Based on the research and established judicial practice, we conclude that at least one of the following four conditions must be used to establish «abuse of the right»: 1. The predominant motivation for using the right is to cause harm. 2. There is no legal basis for exercising its right. 3. The exercise of the right contradicts the principle of contra bonos mores or violates good faith or justice. 4. The right is not used for its intended purpose.
Key words: abuse of right, the Roman law, principle of the inadmissibility of the abuse of right, judicial discretion, principle of good faith, principle of justice.
1. Kozii M. Kh., Bordalboia M. Perevahy chlenstva u Svitovii Orhanizatsii Torhivli. Ministerstvo ekonomichnoho rozvytku i torhivli Ukrainy: Broshura. 2016. 38 s.
2. Bolgár Vera. Abuse of Rights in France, Germany, and Switzerland: A Survey of a Recent Chapter in Legal Doctrine. Louisiana Law Review. 1975. Vol. 35, N 4. URL: https://digitalcommons.law.lsu.edu/lalrev/vol35/ iss5/4
3. Conant E. B. The Laws of the Twelve Tables. St. Louis Law Review. 1928. Vol. 231, N 13. URL: https:// openscholarship.wustl.edu/cgi/viewcontent.cgi?article=5092&context=law_lawreview
4. Déclaration des droits de l’Homme et du citoyen de 1789. URL: http://www.textes.justice.gouv.fr/textesfondamentaux-10086/droits-de-lhomme-et-libertes-fondamentales-10087/declaration-des-droits-de-lhommeet-du-citoyen-de-1789-10116.html
5. Massachusetts Mut. Life Ins. Co. v. Nails. Supreme Court of Louisiana. 1989. Record 549 So. 2d 826. URL: https://law.justia.com/cases/louisiana/supreme-court/1989/89-c-0550-2.html
6. Michael Byers. Abuse of Rights: An Old Principle, A New Age. McGill Law Journal. 2002. Vol. 47:2. URL: https://lawjournal.mcgill.ca/article/abuse-of-rights-an-old-principle-a-new-age/
7. Mingam C., Duval A. L’abus de droit, état du droit positif. Revue juridique de l’Ouest. 1998. URL: https:// www.persee.fr/doc/juro_0990-1027_1998_num_11_4_2487
8. Perillo J. M. Abuse of Rights: A Pervasive Legal Concept. Pacific Law Journal. 1995. Vol. 35. URL: https:// ir.lawnet.fordham.edu/faculty_scholarship/784
9. Plutarch. The Parallel lives. Loeb classical library edition. 1914. Vol. 1. URL: https://penelope.uchicago.edu/ Thayer/E/Roman/Texts/Plutarch/Lives/Solon+Publicola*.html
10. Reid E. The Doctrine of Abuse of Rights: Perspective from a Mixed Jurisdiction. Electronic Journal of Comparative Law 8. 2004. ¹ 3. URL: https://web.archive.org/web/20170206201518/http://www.ejcl.org/
11. The Civil Code of the Philippines. 2016. URL: https://www.ilo.org/dyn/natlex/docs/ ELECTRONIC/50160/102475/F1500145909/PHL50160.pdf
12. Ucaryilmaz T. S. The principle of Bona Fides from Roman law. Conterpopary law. PhD Thesis. Law department İhsan Dogramaci Bilkent University, Ankara. 2018. URL: http://repository.bilkent.edu.tr/bitstream/ handle/11693/47574/10193407.pdf?sequence=1&isAllowed=y