The abuse right is a legal concept which makes it possible to sanction any use of a right which exceeds the terminals of the reasonable use of this right. It exists in the majority of the legal systems known as of civil law (right French, Belgian, Luxembourg, Italian, Dutch,…).

The Jurisprudence released several criteria to determine when the use of a right can be regarded as abusive. These criteria are varied and noncumulative, as it acts more lines directices as another thing. Thus can one say that her right any person misuses who, between several manners of exerting her right which get the same benefit to him, chooses the most detrimental use for the thirds.

Defined all during the XIXe century by jurisprudence, the theory of the abuse right corresponds finally to two great forms of abuse: thesocial one and abuse-intention-of-to harm it. The social abuse is the act to divert the terms of a law to achieve a contrary goal with that which it continued. As for abuse-intention-of-harming it, it corresponds to the act to use a right only in the only intention to harm others.

With the wire of jurisprudence, abuse-intention-of-to harm it seemed to take the step on thesocial one, but it is only one appearance. Actually, thesocial one is an important tool for legal evolution between the hands of the courts which make use of it to make evolve/move concepts of right by reinterpreting the objectives of the legislative texts, according to the social evolutions which surround them.

For example, it is by the play of abuse-social that one could work out the principle then countered legem compensation for the rupture of the work contract at unlimited duration at the end of the XIXe century. Starting by compensating the workers by qualifying certain dismissals for abusive, it is little by little that the right determined the criteria which ended up emerging from jurisprudence.

The abuse right is thus all at the same time an instrument limiting the range of the rights which can be granted a legal person, and an important tool of legal evolution between the hands of the judges.

It is also about a tax concept used by the tax authorities in order to call into question of the assemblies " fictifs" or the goal is exclusively tax.

An old judgment of the Court of Colmar (about a business of false chimney intended to harm a neighbor) constitutes an example celebrates constation of one of abuse right (Colmar, May 2nd, 1855, D.P., 1856,2,9).

See too