ABUSE RIGHT

                   Abuse right

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PRESENTATION

abuse right, improper use of a right, diverting it of its finality.

The abuse right is a legal concept, in particular associated the moral right which makes it possible to sanction any use of a droit(ou of abusive clauses) which exceeds the terminals of the reasonable use of this right.

The law allots rights to the private individuals. The holders of these rights can use about it, in theory freely. The traditional doctrines state that anybody that does not injure which uses of its right. However, this proverb does not have an absolute value, because "with the men insincerely", not of indulgence:it is then interdict to misuse its right.

The question is thus to know if the exercise of a right which involves for others a damage makes it possible to the author of this damage to be cut off behind its right to push back the action in repair.

It is almost unanimously allowed that any exercise of a right is not  a priori  abusive. Some even could support that the concept of right and that of abuse were paradoxical with the reason which the right would cease where the abuse starts. Consequently the act known as abusive should be described as lawful, this last concept being different from that of abuse. Doctrines and case law however highlighted methods of exercise of a right, which, without being to be strictly accurate lawful, deserve the qualification of abusive. This primarily judicial law-making stresses that there did not exist in the French legislation of provisions sanctioning the abuse of right in a general way. The legislative print of this concept is summarized with some special texts which one can wonder whether they retain a utility design of this concept.

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The CRITERION OF The ABUSE RIGHT

For the courts, the abuse right initially seems the means of repair of the detrimental consequences of faults made by, or at the time of the exercise of a right. In civil law, the abuse is revealed by the exercise of a right without interest for oneself and in the only intention harming others, or, according to another criterion, to exert this right in ignorance of its social duties: it is the useless exercise and without profit of a right which deserves the qualifier of abusive.

By doing this, the judge, by the means of the abuse right establishes a control, more or less rigorous, on the use of the rights. Thus the abuse right it was for a long time the instrument of control of right of dismissal, and on the basis of the capacity of the employer. The absence of real and serious cause today is enough to characterize the abuse right of dismissal.

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ORIGIN: ABUSE RIGHT OF LANDED PROPERTY

Historically, it is the right of ownership which is at the origin of the theory of the abuse right. It is significant to raise the field of election of this theory insofar as the Civil code of 1804 fact of the right of ownership an absolute  right,  and  like  such insusceptible to be exerted a priori under abusive conditions. Today, this law business decreased under the effect of the development of the legal status of the abnormal disadvantages of vicinity. The theory of the disorders of the vicinity is distinguished from that of the abuse right, since it makes it possible to make condemn to repair that which caused an injury with its neighbor while at the same time this disorder would be inherent in a licit activity and than no fault could be reproached that which causes it. The way of the abnormal disadvantages of vicinity is easier than that of the abuse right of ownership which requires than is brought back the proof of the intention to harm.

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FIELDS OF IMPLEMENTATION OF The THEORY OF The ABUSE RIGHT.

Another outstanding sphere of application of the abuse right is that of the contracts. Thus, in spite of the principle of contractual freedom, certain refusal to contract are held for abusive. For example, the refusal to renew a come contract with expiry is described as abusive, when one by attitudes not ambiguities let foresee a renewal.

It is today the abuse right to act as justice which constitutes the privileged field of the application of the theory of the abuse right. It seemed like a means of slowing down the litigious heats and, consequently, an instrument of handling likely to take part in the good administration of justice. It results the judgment from it from the bold and vexatious actions, or the recourse to delaying tactics at only end to delay the exit of a lawsuit. The new code of civil procedure ratified this Praetorian attitude besides by enacting texts sanctioning expressly various assumptions of abuse the right to act as justice.

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SANCTION OF The ABUSE RIGHT

In the contractual field, the abuse right is very largely sanctioned. The rupture of the talks is abusive when it is animated by an intention to harm, when it takes place insincerely or with a lightness blâmable. In the same way, the refusal to contract is sometimes legalement prohibited. Such is the case of the refusal to sell or the refusal to contract for certain professions enjoying a monopoly.

If the abuse right caused an injury, the victim is entitled to repair. In general this one will be pecuniary. However, the compensation can be done by more suitable means, such as repair in kind.