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, some more of 3rd theory.
Movement away from 1st to ...