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CRITERIA FOR ABUSE OF CONTRACTUAL RIGHTS
CRITERIA FOR ABUSE OF
CONTRACTUAL RIGHTS
• After concluding the philosophical and theoretical discussion regarding the existence of “abuse†of rights
3 THEORIES
1. The “Individualist†Theory
o Criteria is evidence of: 1. Malice; 2. Lack of good faith
Criticism – Too limited. Other criteria can also be grounds
2. The “Social Function†Theory
o Criteria is when right is used contrary to social function (regardless of intent and reasonableness of user of right)
Criticism – Ignores distinction between Judiciary and Legislature
Creates uncertainty in its application
3. The “Reasonable Exercise of Rights†Theory
o Criteria is when right not exercised in a reasonable manner – prudent and diligent user (objective). Therefore, unnecessary to check first 2 theories (good faith/social function)
In Quebec Today
Some cases to support 1st theory, s...
CRITERIA FOR ABUSE OF
CONTRACTUAL RIGHTS
• After concluding the philosophical and theoretical discussion regarding the existence of “abuse†of rights
3 THEORIES
1. The “Individualist†Theory
o Criteria is evidence of: 1. Malice; 2. Lack of good faith
Criticism – Too limited. Other criteria can also be grounds
2. The “Social Function†Theory
o Criteria is when right is used contrary to social function (regardless of intent and reasonableness of user of right)
Criticism – Ignores distinction between Judiciary and Legislature
Creates uncertainty in its application
3. The “Reasonable Exercise of Rights†Theory
o Criteria is when right not exercised in a reasonable manner – prudent and diligent user (objective). Therefore, unnecessary to check first 2 theories (good faith/social function)
In Quebec Today
Some cases to support 1st theory, s...
Posted by: Kelly G Hess
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