A. Theory of the abuse of rights.

 In Dominican Law exists the theory of abuse of rights, which consists in the execution of a damaging material or juridical act, which would otherwise be considered licit from an objective and formal point of view, but is considered illicit because the entitled with the right exerts it with the intention to harm a third party. Some authors give a more ample definition, and consider abusive the exercise of a right due to the conditions in which it was exerted (act accompanied by fault, use of disproportionate means compared to the pursued result). Or in regard to whether the harm caused to others is excessive, or because the right has deviated from the aim in mind when it was granted[1].

An abuse of rights occurs when the limits of the execution of a certain right are surpassed and due to this abuse harm is caused to a third party. This theory is based on article 1382 of the Civil Code, which established the following:

Article 1382. Every action of man whatsoever which occasions injury to another, binds him through whose fault it happened to reparation thereof.

B. Criteria

When exerting a right a person can harm another. In order to determine if such harm must be repaired by its author, we must apply the principles of offence. He who exerts a right with the only wish to cause harm to others commits an intentional offense; and thus compromises his liability. There is abuse of right when there is intent to harm, when the objective is to harm others, without any serious interest for oneself. It is not necessary that the exercise of the right be aimed only towards a desired harm. From the time it is recognized that such intention is the cause of the harm, one becomes liable.

Another case is when a non-intentional serious offence is committed. In effect, case law assimilates the serious offense concept to tortious fraud, thus compromising the liability of the author of the harm. When a right is exercised without interest, one is in the presence of a serious offense equivalent to tortious fraud, and therefore the liability of the agent is compromised.

C. Applications.

Dominican and French case law contains innumerable decisions relating to the abuse of right in contractual as well as in extra contractual matter. In a lease of services of undetermined duration it declares that the right to resolve the contract, recognized to all parties by virtue of article 1780 of the Civil Code, is susceptible of abuse. In a sales agreement, if one of the clauses of the contract allows the seller a reduction without incurring in damages, it is considered abuse of right. In partnerships, one ruling in particular from the Sena Commerce Court from December 1924 must be cited, which declares that a decision taken by the majority of shareholder must be annulled not only if it has been adopted with the purpose of harming the minority shareholders, but also when such decision constitutes a simple offense[2].

In contractual matter, the abuse of right normally presents itself not in the inexecution of the contract, but in its execution: the victim complains that the contract is executed abusively: such is the case of the tenant whose landlord abuses the right conferred to him by the lease, not accepting a subtenant. The same case arises when the abuse occurs in the resolution of the contract[3]. 

An interesting case of abuse of rights is the abuse of a contractual prerogative. The abuse of right intervenes to express that the binding force of a contractual prerogative is not limited to its text, but it extents to its spirit regarding the purpose of its stipulations. The abuse of a prerogative does not play against the contract, but seeks that the parties remain within the true boundaries of their respective rights. If these conditions are respected, the principle is that a contracting party has the right to execute the contract, and to constrain his counterpart to do the same. But the execution of the contractual stipulations cannot be abusive[4]. In the presence of a lease contract that prohibits the tenant to make works without the consent of the landlord, French case law authorizes the tenant to obviate the consent of the landlord when his refusal is abusive, mostly if the motives put forth by the latter are untrue[5]. But the most characteristic subject in matter of leases treats the abuse in the use of an authorization clause. It has been admitted that the denial of authorization, far from being discretional, must be motivated, which implies that it must be controlled that this clause does not deviate from its indented purpose[6] (an authorization clause that whose purpose was to permit the owner “control over the regularity of the cession, of the morality, the solvency and the capacity of the eventual purchaser”)[7].  

It can happen, nonetheless, that the abuse consists in not executing the contract. The debtor, for example, in order to delay the execution, abuses the legal recourses. Then an extra contractual abuse occurs (right to an appeal, etc.)[8].

In extra contractual matter, regarding the abuse of the legal recourses, case law is in agreement to decide that from the time that there is an offense, liability exists. The formula that Dominican case law utilizes this the following: “The exercise of a legal recourse does not degenerate in an offence susceptible of involving a condemnation in punitive damages, unless it constitutes an act of malice or bad faith, or when it is at least the result of an error equivalent to tortious fraud”[9].

D. Abuse of rights in Dominican case law.

Dominican case law regarding abuse of law is more sparse as that of the issue regarding Good Faith.  Nevertheless as can be seen from these rulings, the litmus test used by the Dominican Supreme Court to determine whether we are in the presence of an abuse of right is whether there was bad faith and/or the intend to cause harm, by the person exercising his/her right.

In a case involving an ex- employee demanding damages from the ex-employer for having been terminated “abusively” due to the fact that the employee was under medical license at the time of the termination, the Dominican Supreme Court ruled that these facts are not sufficient proof that the employer acted with the intend to cause harm. B.J.823.1186; B.J.936.1489[10].

In another case, an owner which unsuccessfully brought an action involving the eviction of his lessee and additionally sued him in violation of property rights knowing full well that the actions by the lessee did not amount to anything illegal, was held by the Supreme Court to have acted in abuse of right. B.J.889.3206[11].

Lastly in the most explicit ruling regarding the context in which the doctrine of abuse of right could be enforced, the Dominican Supreme Court has held that “the exercise of a right cannot give rise to a claim in damages unless said right has been exercised in bad faith and with the intention to cause harm”. In the case at hand, having filed an opposition to the transfer of a real estate which the opponent owned, and whose sale later proved to have been flawed, was ruled not to have been made in bad faith with the intention to cause harm, nor in a dull or negligent way, in view of which the opponent was not held liable. B.J.941.580; B.J.1050.132[12].

[1] Henri Capitant: Vocabulario Jurídico, Editora Depalma, Buenos Aires, s/d, p. 7.

[2] See Juan Morel, Responsabilidad Civil, Editorial Tempo, Santo Domingo, 1989, p. 192.

[3] See Juan Morel, Responsabilidad Civil, Editorial Tempo, Santo Domingo, 1989, p. 189.

[4] In Frane: CA Pau, Feb. 15, 1973, JCP 1973, II 17584; Cass. 1ere civ. Dec. 6, 1989, D. 1990, 289, note J. Ghestin, JCP 1990, II, 21534, note Ph. Delebecque (quote taken from Loic Cadiet and Philippe Le Tourneau, « Abus de Droit », Répertoire Civile Dalloz, CD 2003, parr. 84 and 88).

[5] In France: Cass. 3eme civ, Jun. 27, 1990, Bull Civ. III, No. 154; Oct. 12, 1971, D. 1972, 210, Bull Civ, III, No. 480 (quote taken from Loic Cadiet and Philippe Le Tourneau, « Abus de Droit », Répertoire Civile Dalloz, CD 2003, parr. 88)

[6] In France: Cass. Req. Nov. 16, 1927, DP 1928, 1, 61, rapp. Bricout; Cass 3eme civ. Oct. 13, 1989, Loyers e copr. 1989, No. 538; Cass. Com. Feb. 19, 1963, JCP 1963. II. 13299, note F. Givord; Cass. 3eme civ. Apr. 14, 1982, JCP 1982, IV, 217, (quote taken from Loic Cadiet and Philippe Le Tourneau, « Abus de Droit », Répertoire Civile Dalloz, CD 2003, parr. 88).

[7] In France: CA Pay, Aug. 29, 1991, Loyers et copr, 1992, No. 213 (quote taken from Loic Cadiet and Philippe Le Tourneau, « Abus de Droit », Répertoire Civile Dalloz, CD 2003, parr. 88).

[8] See Juan Morel, Responsabilidad Civil, Editorial Tempo, Santo Domingo, 1989, pp. 189-190.

[9] Dominican Supreme Court of Justice, B.J., Dec. 3, 1923, p. 49; B.J., Dec. 22, 1938, p. 945; B.J. Jul. 2, 1948, p. 1381; B.J. Sept. 15, 1950, p. 856; B.J. Jan. 31, 1951, p. 296; B.J. Mar. 12, 1951, p. 237; B.J. Nov. 18, 1952, p. 2111; B.J. 1050 May 6, 1998, p. 131-132.

[10] An excerpt of this ruling can also be found at “Compendio Jurídico Dominicano” (Dominican Judicial Compendium) 2nd Extended Edition 2000, by William C. Headrick, pg.3.

[11] Idem.

[12] Idem, pg. 4.