The abuse of rights doctrine has regained momentum in the judicial and scholarly debates. Facing the fundamental tension between the formal attribution of a right and the concrete exercise thereof, it is maintained that the abuse of rights paradigm should not be reduced to the legality/illegality divide, as any legal entitlement, despite being formally attributed, may be used as a screen to conceal arbitrary behavior, thus unreasonably impairing the legitimate expectations of one or more counterparties. Moving beyond the distinction between common law and civil law traditions, the Author vigorously defends the autonomy of judges, highlighting that the art of interpreting the law always entails a certain degree of creativity, to be exercised with the utmost rigor.
On Abuse of Rights and Judicial Creativity
QUARTA, FRANCESCO
In corso di stampa
Abstract
The abuse of rights doctrine has regained momentum in the judicial and scholarly debates. Facing the fundamental tension between the formal attribution of a right and the concrete exercise thereof, it is maintained that the abuse of rights paradigm should not be reduced to the legality/illegality divide, as any legal entitlement, despite being formally attributed, may be used as a screen to conceal arbitrary behavior, thus unreasonably impairing the legitimate expectations of one or more counterparties. Moving beyond the distinction between common law and civil law traditions, the Author vigorously defends the autonomy of judges, highlighting that the art of interpreting the law always entails a certain degree of creativity, to be exercised with the utmost rigor.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
