Abuse of law

The person who has a right is in most cases simply authorized to exercise that right. If you own a plot of land, then you have the right to do whatever you want with that plot. So you may also build a big tower in your yard. In exercising those rights, however, you can also go too far. The law states that if you only exercise the right for the purpose of disadvantaging another person, then it is not allowed. We call that ‘abuse of right’ or ‘abuse of authority.

What is an abuse of right?

Abuse of law involves exercising a right or power in a way that is unlawful. For example, it may involve the abuse of property rights. The owner of a property has the right to hang a large banner in his yard. If his interests are not very important in doing so, he may be abusing his right because he is ruining his neighbor's view.

When can you claim an abuse of rights?

Abuse of law, like the doctrine estoppel, stems from reasonableness and fairness. Whether a right is abused depends on the circumstances of the case. However, the law does provide some examples of situations that constitute an abuse of right. If a power is exercised for no other purpose than to harm another, then there may be an abuse of right or power. Similarly, if the right or power is used for a purpose other than that for which it was granted. There is also abuse if the right or power could not reasonably have been exercised. For this, the disproportionality between the interest in exercising and the interest that is harmed as a result is taken into account. This was the case in the example about the banner.

What are the consequences of abuse of rights?

The most obvious consequence of abuse of right is that the person to whom the right or power belongs cannot invoke it. The person entitled (creditor) wants to exercise the right, but the debtor wants to prevent it. This often culminates in legal proceedings. This can be a summary proceedings are at the cantonal court, or even a proceedings on the merits in the form of a petition- whether subpoena proceedings. Abuse of rights can additionally occur in many different areas of law. The consequence of a ruling on abuse of rights therefore varies from case to case. It can lead to a compensation, as well as to prohibit certain procedural acts such as challenging a judge or even bringing proceedings.

Abuse of procedural law

There may even be an abuse of procedural law. For example, if a hopeless claim is brought only to prejudice the other party. This was the case in proceedings filed in 2018 at the Gelderland court. The judge ruled that a mother acted unlawfully against her son by suing him and demanding payment. This was unlawful because she had previously discharged the debt. The judge found this so objectionable that he ordered the mother to pay the actual fees incurred by the son. legal costs to be reimbursed.

Conclusion

Abuse of right is an important doctrine in civil law. In practice, determining whether a right has been abused can sometimes be complicated. In addition, it is up to the person who subpoenaed is, to prove an abuse of right. Contact the procedural law attorney at Lexys Lawyers to advise you whether your opposing party is abusing rights, or whether or not you can exercise certain rights yourself.