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Back to category: Miscellaneous Limited version - please login or register to view the entire paper. 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... Posted by: Kelly G Hess Limited version - please login or register to view the entire paper. |
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