Abuse of rights
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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:
Article 2 of the Einleitung to the Swiss Civil Code states:
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.”
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Conditions
At least one of four conditions is required to invoke the doctrine:
- 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), a much more limited doctrine known as aemulatio vicini serves the same purpose.
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