This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property rights on land vis a vis the rights of residential neighbours, the limits of a landowner’s property right on crucial economic resources, such as water or coal-land. This article uses a comparative analysis of European and American cases and legal writing to interrogate a widely-shared understanding of the impact and significance of abuse of rights, neatly articulated in H. C. Gutteridge’s passage. First, it challenges the notion that abuse of rights is a peculiar “invention” of civil law jurists, absent in the common law. Second, it questions the idea that abuse of rights operated as an effective social “corrective” preventing the “manifest injustices” allowed by modern individualist private law.
di Robilant, Anna, Abuse of Rights: The Continental Drug and the Common Law (June 20, 2014). Boston Univ. School of Law, Public Law Research Paper No. 14-28. Available at SSRN: https://ssrn.com/abstract=2457018 or http://dx.doi.org/10.2139/ssrn.2457018