The “Abuse of Right” Doctrine
Our Associate Hisham Almansoor examines the ‘abuse of right’ doctrine in Bahraini law, delving into its origins and implications supported by insights from relevant case law.
Hisham Almansoor ([email protected]) – Associate
Introducing the ‘Abuse of Right’ Doctrine
The ‘abuse of right’ doctrine; an internationally recognized concept in civil law and common law jurisdictions alike, traces its origins back to Roman law, which eventually spread into French law, the latter of which has greatly influenced local legal systems drawing upon the Egyptian Civil Code.
The doctrine posits that an individual may have a right and yet exercise it in such a manner that is abusive, disproportionate or may not achieve any substantial purpose beyond causing harm to another. This article addresses how Bahraini law regulates the ‘abuse of rights’ doctrine, and the criteria underpinning this doctrine before discussing its implications in practice.
Bahraini Law and ‘Abuse of Right’
Article 27 of Decree Law No. 19/2001 Issuing the Civil Code (BCC) provides, “A person who lawfully exercises his right shall not be liable towards third parties for damage arising therefrom.” This addresses the status quo wherein a person who lawfully exercises a right, even when this causes harm or loss to another individual, is not required to make restitution (i.e. compensate) for any damage suffered.
More crucially, Article 28 BCC stipulates:
“The exercise of a right shall be unlawful in the following cases:
(a) if it is intended solely to cause damage to others;
(b) if the benefit(s) sought to attain is unlawful;
(c) if the benefit(s) sought to attain is disproportionate to the harm that will be suffered by others;
(d) if, by its nature, it may cause unusually gross damage to third parties.”
Applications of the Doctrine in Practice
We turn to consider the cases prescribed by Article 28 BCC to provide a broader understanding of how the doctrine applies in a practical context between parties.
Intention of Causing Damage to Others
This ground is established where there is no real purpose or benefit to the exercise of a right against the other party.
The Egyptian Court of Cassation held under Challenge No. 4464 J.Y. 68 that “The use of a right is unlawful if it is only intended to harm others; which can only be achieved if there is no benefit in using the right. […] The right to litigate and defend are permissible rights, and whoever resorts to the judiciary to assert a right he claims for himself or to defend this right shall not be held accountable unless it is proven that he has deviated from the permissible right and led to acrimonious conduct through the dispute and stubbornness in pursuing the litigant(s) […] with the intention of harming the opponent.”
This is a high threshold to establish as the right to litigate and use of the appellate system does not in itself reflect an intention to cause harm, but rather the pursuit of legal proceedings against a litigant who has no legal cause to be a litigant in the case. The use of the right to litigate to harass, intimidate, or financially exhaust the other party is another example of an abuse of rights.
Purpose is Unlawful or Illegitimate
The submission of a false complaint or case without due regard for all circumstances may also be deemed an abuse of rights. In this regard, the Bahraini Court of Cassation held under Challenge No. 245 J.Y. 2012 that “any fault which causes harm to another is an unlawful act which obliges its perpetrator to compensate for the harm resulting therefrom, as there is a legal obligation on a person to exercise care in his relationship with other members of his society, which obligates him, by the standard of the ordinary person known among people, to exercise a degree of caution, insight and vigilance in his behaviour, such that his acts do not harm anyone. If he deviates from this required behaviour, it is a wrongful act that requires its perpetrator to be responsible for compensating the person harmed by it.” This judgment was rendered in the context of a party who submitted a false criminal complaint against another. The court further held that “A false complaint, even if the complainant is in good faith and believes in the truth of the complaint, is considered a civil fault requiring compensation if it is characterized by recklessness and haste, which constitutes a deviation from the behaviour required of an ordinary person in taking precautions and foresight before accusing another which would subject the latter to punishment or contempt.”
Other key examples of an exercise of a right to fulfil unlawful or illegitimate purposes stems from an employer-employee relationship. Labour laws are enacted primarily as a protective framework in favour of employees being the weaker of the two parties. In that spirit, Article 637 BCC stipulates, “Compensation may be awarded for termination, even if such termination is not by the employer, if the employer, by his own actions and especially by arbitrary treatment or by a breach of contractual obligation, has compelled the employee to have terminated the contract himself. The transfer of an employee, without fault on his part, to a less beneficial or less suitable post than which he is occupying is not deemed to be an indirect arbitrary act if such transfer is necessary in the interests of the work. The transfer will, however, be deemed arbitrary if it is intended to harm the employee.” Although the employer has a right to organize the place of employment in a manner which fulfils its best interests, the employer would be abusing that right if their discretion is exercised in bad faith, to move an employee to an inferior position. This presents evidentiary challenges borne by the employee who is claiming compensation in this circumstance to establish (i) bad faith by the employer and (ii) harm suffered as a result of the employer’s discretion.
Infliction of Gross Damage
An exercise of a right may cause a degree of harm or loss as a natural consequence to enforcing such right. However, the level of damage may exceed that which is normally expected in the course of exercising such right. This is best demonstrated by reference to a landlord-tenant relationship. The right to evict a tenant from a leased premises, pursuant to a court judgment, is a right that may be exercised by the landlord. If this right is exercised in such a manner that causes gross damage to the tenant, this will give rise to an obligation for the landlord to make restitution to the tenant. This has been confirmed by the Bahraini Court of Cassation under Challenge Nos. 611 and 648 J.Y. 2011 where it was held that the landlord’s liability to compensate the tenant for the damages suffered was established from severe damage or destruction to various items and personal effects of the tenant in the process of eviction pursuant to a non-final judgment.
Concluding remarks
An unlawful exercise of a right is deemed to a be a ‘fault’ giving rise to an obligation to make restitution pursuant to Article 158 BCC. This is nonetheless the case even in instances where the purported unlawful exercise of a right stems from a contract between the parties. This was exemplified by a landlord-tenant relationship wherein a landlord exercises the right to terminate the least and evict a tenant from the leased premises, or when an employer moves an employee to an inferior post in bad faith. In a non-contractual context, the abuse of rights may take various forms including the submission of false complaints or misuse of the legal system with the intention of causing further distress to the other party. Whether or not the exercise of a right stems from a contract, the essence of the doctrine remains the same. An individual may not exercise a right without due regard to its repercussions, or where such exercise of right may cause (gross) damage to another, or to fulfill unlawful or illegitimate purposes.
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