In civil law jurisdictions, abuse of rights 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 or vexatious litigation, forum shopping, abuse of process, 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).
Contents
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 Titre préliminaire to the Swiss Civil Code states:
Articles 19, 20 and 21 of the Civil Code of the Philippines state that:
Conditions
At least one of four conditions is required to invoke the doctrine:
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