ABOUT ABUSE OF THE RIGHT AND CONTRACT LAW*

Non omne quod licet honestum est

The Latin sentence above expresses a principle of law dating back to the third century A.C. and marks a separation between the field of morality and that of law. 

Not everything that is lawful (according to the law), is honest (according to ethics).

Law and ethics are two equally prescriptive systems, and conflicts may arise between the two areas: the problem of the ethical evaluation of law therefore arises.

On such basis, since the beginning of the 900 a theory on the so called abuse of rights has been developed by doctrine and jurisprudence.

But since a right is the attribution to a subject of a position of freedom and strength, does it make sense to talk about abuse?

Well, yes.

There is an abuse of the right when its exercise is contrary to the ethical and social purposes for which the right itself has been recognized and is protected by the legal system. 

There is no rule in the Italian Civil Code that generally sanctions abuse of rights.

With reference to the contractual sector, the existence of a general clause of good faith pursuant to art. 1337 c.c, has led Courts of law to identify cases of abuse of rights:

pre-contractual liability is recognized as the sanction for the abusive behavior of the party who unfairly withdraws from negotiations.

And that’s not all.

Along these lines, the judges now appear inclined to sanction even lack of good faith in the performance of the contract; and therefore good faith becomes an obligation integrating the contract, consisting in:

• not to abuse one’s position in order not to unfairly burden the other party’s;
• to safeguard the other party to the extent that this does not involve a significant sacrifice of one’s own reasons.

The violations of these duties constitute an offense.

*This is part of a speech presented in a roundtable on comparative contract law.