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Abuse of Rights

Published online by Cambridge University Press:  16 January 2009

H. C. Gutterridge
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Extract

The theory of the abuse of rights is one which has been rejected by our law, with the result that the ancient brocard ‘dura lex sed lex’ finds its most vivid illustration in the present-day decisions of the Anglo-American Courts. The absolutist view of rights which is a feature of the Common Law was summed up by Lord Macnaghten in trenchant language when he said in Mayor of Bradford v. Pickles that although Mr. Pickles's conduct in wilfully depriving his fellow townsmen of part of their water supply might be ‘shocking to a moral philosopher’ there was nothing in the law of England which could stop him from being as ‘churlish, selfish and grasping’ as it was possible for a man to be. In other words our law has not hesitated to place the seal of its approval upon a theory of the extent of individual rights which can only be described as the consecration of the spirit of unrestricted egoism.

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Research Article
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The Cambridge Law Journal , Volume 5 , Issue 1 , March 1933 , pp. 22 - 45
Copyright
Copyright © Cambridge Law Journal and Contributors 1933

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References

1 [1895] A. C. 587, at p. 600. The absolutist theory appears to predominate in American law, but in certain States there is legislation of a modifying character, e.g. as regards the erection of ‘spite fences,’ and the plea of justification in libel actions. See Ames in 18 Harvard L. B. p. 97, and 22 Harvard L. B. p. 411. The position in Canada, so far as the Common Law jurisdiction⋅ are concerned, is discussed by Robinette, ‘Delietual Responsibility in the Common Law Provinces of Canada,’ Canadian Bar Beview, vol. xi, at p. 101.

2 See also per Wills, J. in Allen v. Flood [1898] A. C. 1, at p. 46Google Scholar: ‘Any right given by contract may be exercised against the giver by the person to whom it is granted, no matter how wicked, cruel or mean the motive may be which determines the enforcement of the right. It is hardly too much to say that some of the most cruel things that come under the notice of a judge are mere exercises of a right given by contract.’

3 See Pollock, The Law of Torts (12th ed.) at p. 23; Salmond, The Law of Torts (7th ed.) at p. 8. But cf. Goodhart, Essays in Jurisprudence and the Common Law, at p. 36; Winfield, ‘Law Reform,’ L. Q. R. vol. xliv, p. 290; Walton, ‘Motive as an Element in Torts in the Common and in the Civil Law,’ 22 Harvard L. R. p. 501.

4 Donoghue v. Stevenson [1932] A. C. at p. 580Google Scholar.

5 A Belgian jurist, for instance, supports the theory of the abuse of rights on the ground that it ‘furnishes a means of transmuting individual into social rights without causing an upheaval.’ (Campion, La théorie de l'abus des droits, p. 320.

6 Traité élémentaire de droit civil, vol. ii, § 871. Cf. Kipert, La règle morale dans les obligations civiles, § 89; and Duguit, Les transformations générales du droit privé, p. 198.

7 Josserand, De l'esprit des droits et de leur relativité.

8 Enneccerus, however, speaks of ‘misbräuchliche Bechtsansübungen’: Lehrbuch des Bürgerlichen Rechts, § 220.

9 Venzi, Manuale di Diritto Civile Italiano (5th ed.) p. 196. Cf. the Scots law as to acts done in ‘aemulationem vicini,’ Erakine, Inst. II, 1, 2.

10 Desserteaux, Abus de droit ou conflit de droit,' Revue Trimestrielle de Droit Civil, 1906, p. 116. Cf. Josserand, op. cit. at p. 337.

11 It is not without interest to note that one of the reasons alleged by the Socialist Party in the French Chamber of Deputies in justification of the refusal to pay the current instaíment of the War Debt to the U.S.A. was that it was an abuse of rights to demand payment in the circumstances. (Times Newspaper, December 28, 1932.)

12 Directors Liability Act, 1890, and see now the Companies Act, 1929, s. 37.

13 See post.

14 The criterion of legitimate interest appears to have first been suggested by Brethe, (Sirey, 1925, 2, 217)Google Scholar. See the criticism of this test by Ripert, , “Abus ou Rélativité des Droits,’ Revue Critique de Legislation, 1929, p. 11Google Scholar.

15 Continental lawyers have a prejudice against the criterion of ‘reasonable’ conduct based, so it would seem, on the fact that it involves an arbitrary element, which must be left to the discretion of the judges. But the inconsistency of this attitude is illustrated, for instance, by the fact that, whilst German law strains at the gnat of reasonableness, it nevertheless swallows the camel in the shape of a concept such as that of boni mores, which is even more dependent on the workings of the judicial mind.

16 22 Harvard L. R. at p. 412.

17 De l'esprit des droits et de leur rélativité.

18 Traité de Droit Constitutionnel, vol. i, p. 266.

19 Méthode d'Interpretation (2nd ed.) vol. ii, § 173.

20 See Planiol, op. cit. vol. ii, § 871; Colia-Capitant, Cours Blementaire de Droit Civil, vol. ii, § 195; Ripert, La règie morale dans les obligations civiles; Capitant, , ‘Sur l'abus des droits,’ Revue Trimestrtelle de Droit Civil, 1928, p. 365Google Scholar.

21 Pollock, op. cit. at p. 150.

23 Josserand, op. cit. pp. 387 et seq. The French text refers to droits (1) Non Causés, (2) Egoistes, (3) Altruistes. Non causé is a phrase which it is impossible to translate: its nearest meaning is perhaps ‘absolute’ or ‘unconditional.’ Cf. the classification of rights by Wills, J. in Allen v. Flood [1898] A. C. at p. 46Google Scholar.

23 Franco-Italian draft code of Obligations, Art. 74.

24 Post, p. 41.

25 Mayor of Bradford v. Pickles [1895] A. C. 587; Allen v. Flood [1898] A. C. 1. A curious but isolated instance of the recognition of the principle of abuse is to be found in Christie V. Davey [1893] 1 Ch. 316, where the making of musical or other noises was restrained on the ground that although it was too unsubstantial to amount to a nuisance it constituted a malicious attack on the comfort of another person. This case must be treated as of doubtful authority, though it can perhaps be justified on other grounds. See the remarks of Dr. Stallybrass on this case in Salmond, op. cit. at p. 263, note (d).

26 This statement is subject to certain exceptions, e.g., the creation of the separate estate of a married woman.

27 Judicàture Act, 1925, s. 51.

28 Moneylenders Acts, 1911—1927.

29 Trade Disputes and Trade Unions Act, 1927, s. 6.

30 Railways and Canal Traffic Act, 1854, s. 7; Carriers Act, 1830, s. 1; Carriage of Goods by Sea Act, 1924, Art. III, r. 8.

31 Landlord and Tenant Act, 1927, s. 5.

32 Salmond, op. cit. p. 18.

33 Burgess v. Burgess (1853) 22 L. J. Ch. 675. See generally, Winfield, ‘Privacy,’ L. Q. E. vol. xlvii, p. 23.

34 [1898] A. C. at p. 92. Motive is perhaps material in cases of civil conspiracy. See per Lord Dunedin in Sorrell v. Smith [1925] A. C. pp. 724—720, and cf. per Lord Sumner, ibid. at p. 742; see also Winfield, “The Province of the Law of Tort,” p. 34.

35 Limits of space forbid a general survey of continental law. The Belgian judges have rejected the theory of abuse in its more advanced stages. Dabin, La Vie Juridique des Peuples (Belgique), at p. 165. Bat see Campion, La théorie de l'abus des droits. Legal opinion in Italy appears to be divided: see Venzi, op. cit. p. 197, and Rotondi, Mario, ‘L'abuso di diritto,’ Rivista di diritto Civile, 1923, p. 24Google Scholar. The German, Austrian, Swiss and Soviet rules against abuse all call for special treatment and are discussed later. The Turkish law is the same as the Swiss law. The Swedish law of 1915 dealing with abusive unilateral rescission of a contract is of considerable interest, but there is no general legislation against abuse in the Scandinavian countries. Art. 90 of the Japanese Civil Code forbids acts contrary to ‘morality.’ The Chinese Code (Art. 148) prohibits the exercise of a right with the dominant motive of harming some other person.

36 D. 39. 1. 12 (de acqua) referred to by counsel arguendo in Mayor of Brad-ford v. Pickles [1895] A. C. 587, at p. 590. Also by J., Tindal C. in Acton v. Blundell (1843) 12 M. & W. 324, at p. 353Google Scholar, and by Wensleydale, Lord in Chasemore v. Richards (1859) 7 H. L. C. 349, at p. 387Google Scholar.

37 Reference is often made to the maxim ‘Neque malitiis est indulgendum’ D. 6. 1. 38 (de rei vindicatione). See generally on this question Cornil, Le Droit privé, p. 102; Mélanges Cornil, p. 68; Pringsheim, ‘Animus in Roman Law,’ L. Q. R. vol. xlix, at p. 52.

38 ‘Nullus videtur dolo facere qui suo iure utitur’ (D. 50. 17. 55).

39 These are summarized in Planiol, op cit. vol. ii, § 872, and Colin-Capitant, op. cit. vol. ii, § 198. See also Walton, ‘Delictual Responsibility in Civil Law,’ L. Q. R. vol. xlix, at pp. 87, 92.

40 Dalloz Périodique, 1856. 2. 9.

41 Dalloz Périodique, 1866. 2. 199. Cf. a decision to the same effect by the Court of Cassation, Reg. 10 June, 1902, Sirey, 1908. 1. 11.

42 [1895] A. C. 587.

43 Trib. Civ. Compiégne, Dalloz Piriodique, 1913. 2. 177; Amiens et Req. Dalloz Périodique, 1917. 1. 79.

44 See Walton (22 Harvard L. R. 501) for further illustrations.

45 Dalloz Périodique, 1916. 1. 25.

46 Sirey, 1905. 2. 17.

47 Dalloz Périodique, 1924. 1. 97.

48 Planiol, op. cit. vol. ii, § 872.

49 Colin-Capitant, op. cit. vol. ii, § 195.

50 This distinction is perhaps somewhat subtle, but it exists nevertheless. An interesting parallel is furnished by the rule of French administrative law which renders an official liable for ‘excés de pouvohs.’ This is, however, a matter which cannot be pursued here. See Campion, op. cit. Chapter VIII.

51 See Planiol, op. cit. vol. ii, § 872.

52 These special cases deal mainly with the exercise of proprietary rights or with the right of a husband to administer his wife's property. It is not considered necessary to enumerate them here, but they are summarized in the institutional and encyclopaedic works on German Civil Law. See, for instance, Stammler, Das Gesamte Deutsche Becht, vol. i, p. 690.

53 B. G. B. (Bürgerliches Gesetzbuch), Art. 823, para. 2.

54 For a detailed narrative see the notes to Art. 226 in Staudinger's Commentary on the B. G. B.

55 Enneccerus, Kipp and Wolf, op. cit. vol. i, § 220, note 4.

56 These include the motive with which an act is done, so far as ascertainable: Reichsgerichts Entscheidungen in Zivil Sachen (hereinafter referred to as R. G. E.) vol. lxviii, p. 425.

57 It may be observed that this is perhaps due, to some extent, to the fact that the parties to an action do not, normally, give evidence in Germany, and are not cross-examined.

58 Schuster, German Civil Law, p. 68; Enneccerus, Kipp and Wolf, loc. cit.

59 Stammler, op. cit. p. 691. Art. 226 has also been employed as a check to prevent the rejection of goods by a buyer for some trivial fault. R. G. E. vol. lxi, pp. 91 and 95, and cf. Jackson v. Rotax Motor Co. ‘1910’ 2 K. B. 937. It is also available as a remedy against the malicious institution of legal proceedings. R. G. E. vol. lxviii, p. 124.

60 Stammler, loc. cit.

61 For a discussion of the characteristics of the ‘exceptio doli generalis,’ see Enneccerus, Kipp and Wolf, op. cit. vol. i, § 208, iii, 2.

62 Austrian law has stopped short of the point reached by the law of Germany. The Cívil Code of 1811 enacted by Art. 1305 that ‘a person shall not be responsible for any damage he may cause when exercising a right given to him by law.’ This rule was modified by a law of 1916 which amended Art. 1275 of the Code by rendering a person responsible who exercises a right contra bonos mores, if he does so with the manifest intention of injuring some other person. This means, of course, that there is no remedy against abuse unless there is proof of animus vicini nocendi.

63 See this question discussed by Allen, Law in the Making, Ch. V, and cf. Williams, The Sources of the Law in the Swiss Civil Code, Ch. III.

64 Rossel et Mentha, Manuel de droit civil Suisse, vol. i, p. 67; Egger, Kommentar zum Schweizerischen Zivil Gesetzbuch, vol. i, p. 73.

65 Egger, op. cit. p. 73. It should be noted that the abuse must be manifest.

66 See the following decisions of the Federal Court: Bundesgerichts Entscheidungen, vol. xl, III, p. 160; Die Praxis des Bundesgerichts, vol. iii, p. 190; vol. ix, 149, and more particularly the case of Eberle v. Hämmerli, ibid. vol. vi, p. 142, which appears to be regarded as the leading case.

67 See the excellent summary of the case law in Williams, op. cit. p. 158 et seq.

68 Swiss Code of Obligations, Art. 41 (2).

69 E.g. Civil Code, Arts. 528, 547, 600, 661, 662, 673, 674, 714, 727, 728, 738, 855, 865, etc.; Code of Obligations, 64, 65, 167, 463, 790.

70 Cf. Williams, op. cit. Ch. VIII.

71 Patouillet, Les Codes de la Republique Sovietique, vol. ix, in the Bibliothèque de l'Institut de droit comparé de Lyon.

72 Ibid.

73 Nolde (Bulletin de la Société de legislation compariée, 1923, p. 231) states that the draftsman of the Code was deeply influenced by the theories of Duguit as to the non-existence of rights.

74 Op. cit. p. 275.

75 See the views expressed by Capitant, Revue Trimestrielle de Droit Civil, 1928, p. 371.

76 The necessary opening for this argument is furnished by Art. 38 of the statute of the Court, which directs it to apply ‘the general principles of law recognized by civilized nations.’

77 It would also be necessary to remodel our doctrines relating to civil conspiracy, though this would no doubt cause little regret.

78 See L. Q. R. vol. xlvii, at pp. 23 and 203.

79 See ante, p. 30.