ro fr
universul juridic magazin
Revista Română de Drept Privat

Arguments on the consecration of abuse of rights as a separate assumption of civil liability in romanian law

Our study frames an evolutionary and comparative analysis of the institution of abuse of rights, in terms of current, as well as future legal regulations, an opportunity to debate upon the special conditions and basis for civil liability undertaken by exercising subjective rights. On account of arguments carried forth, we have tried to prove the exigency according to which abuse of rights should be recognized as a distinct case of non-contractual civil liability, which is related to abnormal behavior, likely to cause inconvenience and discomfort to those around and / or production of damage through the exercise of a subjective right or just a legitimate interest. Born of the civil tort, the theory of abuse of rights does not identify with it, which is why there must be underlined its characteristic features, as well as specific solutions it envisages.

The main objective of civil liability is the real, actual protection of the victim against abusive acts by providing the legal framework for return to normality. This includes cessation of all illicit actions or inactions and return to conduct in accordance with the rules of positive law, essential key to ensure harmony and social order.

The problem of grounding civil liability in case of abuse of rights turns out to be extremely complex, trying to detect to what extent the mental attitude of the perpetrator to its act and its consequences constitutes or not an essential condition for carrying along the requirement to restore social equilibrium destroyed. Considered from the perspective of subjective right holder, liability must be subjectively grounded, because liability must be justified by proving a malicious, malevolent, cunning attitude, by which it aims directly injury or harm to others. Otherwise, the holder would consider himself aggrieved, if his slightest negligence could lead to the establishment of liability for his actions. The victim shall consider itself, however, aggrieved, being so vulnerable to both the dangers of producing harmful consequences and the impossibility of proving the guilt of the responsible person. A pessimistic picture in which the exercise of subjective rights is offering, in case of abuse, an unfair solution, where the victim shall unduly bear all adverse consequences of the abuse.

However, on another position ranges the interpretation of grounding from the victim’s perspective, bashfully foreshadowing the arguments of modern, objective grounding, so interesting, pragmatic and seductive. Thus, diversion of exercise of subjective right from the purpose for which it was recognized means to overcome its limits and triggering the liability mechanism, independent of the mental state of the perpetrator. This abnormal behavior should cease, and social balance destroyed should be restored. The responsible person, the holder of subjective right acts as a guarantor to the other members of society for all consequences and discomfort produced, assuming the risks involved in its exercise. The measures taken do not necessarily aim the application of a “penalty” to the perpetrator guilty of the situation thus created, but it applies in order to protect the victim so as to receive remedies. Hence, a new perspective foreshadows, more optimistic, more generous, but whose implementation is currently just an illusion. Orientation of our jurisprudence continues to support subjective grounding of civil liability, under the influence of tort liability.

Subjective and objective, tradition and modernity, unity and diversity in matters of liability for abuse of rights, are just some of our research reflections.