abuse of rights

One of the controversial issues in civil liability law is the use of the right; In other words, to what extent should the right be implemented? If the implementation of a person's right is harmful for others, what is the duty of the right holder? In order to control the quality of the exercise of the right, it is necessary to specify a criterion through which the abuse of the right can be identified. Method In terms of purpose, this writing is practical, and in terms of collection method, it is done in documentary and library form and through the study of laws and regulations and reliable sources, and the information obtained is descriptive and analytical. Regarding the findings of the research, it can be stated that, although Article 132 of the Civil Code is the basis of the legislator's view on the ruling on the abuse of the right, the divergent nature of rights has caused the limitation of the right to be two-sided; It means that sometimes the abuse of the right of guarantee is not enforced and the legislator makes the ruling on the exercise of the right absolute and sometimes prohibits the fair exercise of the right; Regarding the scope of the abuse of the right, it should be considered that the theory of abuse of the right applies only to the exercise of the right, while the rule of non-harm is not limited to the customary scope of the exercise of the right, such as the right of ownership or the right of passage. Regarding the results of the research, it can be said that the place of flow of the rule of abuse of the right is the application and implementation of the right; And in Iran's legal system, it is used to deal with the harm caused by legal rulings and to fight against the right to enforce a right that leads to another harm. On the other hand, in French law, in case of abuse in the position of enforcement of the right, the sentence of permission and falsification of the exercise of the right is removed and it has an equal relationship with the theory of negation of the sentence

Banking contracts, which are among the most commonly used standard contracts, are established between the credit institution (in a general sense) as the master party to the contract and the consumer. The adhesive nature of these contracts, combined with the complexity of their provisions and the dominant position of the credit institution, creates opportunities for potential abuse by the stronger party involved in the agreement. However, it is not always the case that consumers are exploited; information asymmetry can sometimes have the opposite effect, leading to moral hazards on the part of the consumer. Following the financial crisis of 2007-2008, the term "abuse" entered the legal and financial literature of the United States, largely due to the Wall Street Reform and Consumer Protection Act. The inadequacy of existing regulations in preventing the crisis, along with the failure to effectively address the financial turmoil, prompted a comprehensive review of the mechanisms for managing financial markets, particularly concerning credit contracts and the provision of financial facilities. In addition to establishing the Office of Financial Protection for Consumers, the aforementioned Act empowered this office to identify and prosecute abusive financial practices and actions. In this article, a descriptive-analytical approach is employed to examine the background and origins of abuse. The discussion includes the concept and enforcement of prohibitions within the legal system of the United States of America. Furthermore, the article evaluates existing mechanisms and examples in Iranian law in relation to the aforementioned legal framework. Finally, the expansion and enhancement of existing mechanisms within the domestic legal system to address the abuse of the more powerful party in a contract, along with a reference to general principles and the initiation of new approaches to consumer protection, can be inferred.

The necessity of supporting the financial convicts in compensation for the negative effects of the imprisonment has created a suitable environment for profiteers and problems for the judicial system. Easy escape from the obligation by the debtor with proof of indigence and debt installment, available proofs of claim for the financial convicts in order to guilefully proof of indigence, excellence default proceeding over contradictory proceeding and frivolous actions (jactitation) like tierce opposition to executive operations or distress only with trigger to delay in the executive operations are problems of the judiciary in execution of judgments. According to the author, confrontation with abuse of rights in process and judicial management is the most important way to solve the prorogation in the execution of judgment. The execution of judgments of mighty judge should reduce judicial mistakes in process and present judicial services in the reasonable period of time at the lowest cost. Legislator should also make useful rules to prevent  abuse of process and smooth the way for quick and low- costs execution of judgment route

In the context of legal interpretation, there is a potential for the misuse of rights during their exercise, leading to outcomes contrary to the legislator's intent or societal interests. This study focuses on articulating this issue as a general rule in civil law and aims to establish criteria for the misuse of rights and legal measures to prevent their harmful exercise.

The method of studying and gathering information and research findings is descriptive.

Ethical Considerations: 

All ethical principles governing research have been observed in the presentation of this article.

The principle of abuse of rights is not confined to specific areas like contract law or property relations but is relevant across various legal domains, including family law, patent rights, and international arbitration. The potential for deviation from original objectives arises wherever the application of a legal rule depends on individual will and discretion.

In Iranian civil law, the lack of clear criteria for identifying abuse of rights and intent to harm results in indeterminate boundaries for ascertaining rights. However, a review of judicial practices in France shows that French courts have expanded the control of rights and the prevention of their abuse beyond mere intent to harm. This has led to a trend advocating caution in the exercise of rights and recognizing abuse as a basis for liability.

Intellectual Property Rights were born to provide maximum and exclusive protection of rights of the creator of intellectual work, but in practice the holder of these rights gains an advantage over others. This is one of the main arguments of the opponents of granting exclusive rights to IP owners, saying monopoly can lead to abuse. This superiority will be desirable as far as protection of the rights of the holder is concerned. But in order to prevent the holder from abusing his rights vis-a-vis the buyer or consumer of intellectual property, a clear theoretical position and appropriate practical tools must be in place so that the rights granted to protect the creator of the intellectual property are not abused against the public interest. This study intends to gather examples of abuse of rights in the field of intellectual property and then infer the function of the doctrine of abuse of rights in these cases. For this purpose, the cases in which the intellectual right holder finds himself in a dominant position or the possibility of abusing his rights based on laws, are examined in two categories of literary and artistic property rights and industrial property rights. Western legal systems, specifically American laws, have been reviewed, and the necessity and possibility of applying this theory to domestic law has been discussed.

Money creation (money issuance) is one of the most important economic phenomena that leaves many effects on the economy. In order to grant loans to bank customers, money or credit based on which banks create credit from “nothing” in the account of the loan applicant is created. Although this phenomenon has also supporters, but this same group also admits and acknowledges the destructive economic effects of money creation. Its most important effects include economic instability, unbridled inflation, discrimination and violation of justice. This issue can be considered as a matter of concern affecting the Islamic society because there are few people who have not applied for a loan from banks. This phenomenon from a jurisprudential point of view can be considered as an unlawful ownership (in Arabic: اکل المال بالباطل, unjust enrichment); because, the bank acquires property (tries to make money) instead of “nothing”. On the other hand, the prohibition of the abuse of the right, which is based on the evidence of the rule of prohibition of detriment (in Arabic: لا ضرر, principle of harm), implies the prohibition of the creation of money. Banks have the right to loan their customers money and this right is considered by law and Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) for them, but they have made this right an excuse for their profiteering (mercantilism, trade) and causing harm (damnification) to the whole society, which is ruled to illegitimacy on the basis of the evidence of prohibiting the abuse of the right and principle of harm. It should be finally noted that the criterion stated in some ḥadīth (pl. aḥādīth, literally means talk or discourse, narrations) for the unlawfulness of usury, which is the earning of profit without anything in return (equivalent), is equally true about the creation of money, and it is possible to generalize the prohibition of usury by conclusive rectification of the effective cause (Arabic: تنقیح المناط).

In this article, the effects of lack of good faith in the draft petition are analyzed with the aim of identifying the elements of good faith and the lack of it in the petition, as well as recognizing the judicial procedure. The main question is whether the lack of goodwill damages the petition. And how should this be discovered and what are the positive evidences? And in cases where the plaintiff does not have good faith in filing a lawsuit, what decision should the court make?By descriptive-analytical method and by studying jurisprudential and legal sources and extensive research in judicial opinions, it was concluded that although the theory of goodness is not explicitly mentioned in the laws, it does not mean that it is not part of the conditions and principles of civil proceedings. And there are several positive evidences to discover its lack in the judicial procedure, and the guarantee of several performances is also provided in the legal texts as well as in the judicial procedure for this matter.

The concept of abuse of urgency in its general sense includes both emergency transactions resulting from reluctance and includes emergency transactions that, in the specific sense of the word, abuse the state of emergency. Since Article 206 of the Civil Code considers emergency transactions to be valid, many traders, aware of the state of emergency and special distressing circumstances, take advantage of this situation and enter into a transaction with distressed persons. So, the question that comes to mind here is what is the guarantee of such transactions in Iranian and French law?     

This is a qualitative and applied research in terms of purpose and in terms of collecting information by documentary method and studying international documents, sources related to the subject and the obtained information has been analyzed descriptively-analytically.

In the law of most civilized countries, such as France, contracts based on the abuse of urgency are distinguished from emergency transactions and are subject to separate provisions. In our country's law, Article 179 of the law, which is adapted from the law of France, deals with this issue and in such cases, for the distressed, the right to amend the contract is considered. Accordingly, various opinions have been expressed about distressed transactions in case of abuse of urgency, which can be summarized in five comments: 1- The validity of the transaction 2- The validity of the transaction with the right of termination for the distressed 3- No influence of the transaction 4- Transaction; It seems that considering the realization of the spiritual element of reluctance, the non-influence of the transaction in this case is more compatible with legal logic.

The growth of urbanization and immethodical structure and high density and living space shortages can cause damages for neighbors. In all legal systems, under certain circumstances a victim can sue a claim for damages to be compensated. This paper with analytic-descriptive method is to find an answer to this problem what the base and provisions of civil liability originated from neighborhood damages are in three legal systems: Iranian, Egyptian and English. In the Iranian legal system the only legal article related to adjacent lands is Article 132 of the civil code. But in Egyptian law system some articles have been issued for this important thing and also English precedent in this case encompasses different opinions. The result shows that the base of this liability in the Iranian law system is opposability and in the Egyptian law is fault. English court judgments in this ground incline to strict liability. In all examined legal systems for the realization of liability defendant’s acts should be unreasonable, frequent and ongoing and in adjacency of the complainant although it is seen varieties about how to enforce these conditions.

Sometimes foreign investors after the dispute have arisen or when it is predictable and with the intention of bringing the dispute to arbitration, change their nationality or acquire new nationality. The phenomenon called Nationality Planning eases foreign investors’ access to a desirable treaty and increases the chance of bringing disputes against host states.So host states try to avoid these disputes by raising objections to Ratione Temporis or claiming abuse of rights. Arbitration tribunals’ approach towards their Ratione Temporis and abuse of rights is material in host states’ success in limiting Nationality Planning. So the question to be answered is that what requirements are considered by arbitrations in determining Ratione Temporis and abuse of rights and how these two are different. Arbitral precedent shows that these tribunals make distinction between cases of nationality planning contrary to their Ratione Temporis and cases that are considered as abuse of rights. However, in practice their strict approach results in limited acceptation of objections to Ratione Temporis or abuse of rights claims.

Good faith is one of the general and fundamental principles of International Law which indicates the need for voice of fairness, honesty and reasonableness in international relations. This principle protects legitimate and reasonable interests and expectations of parties to international relations and is particularly raised as a requirement for the settlement of international disputes. Some of the rules of International Law, including pacta sunt servanda, estoppel, acquiescence, abuse of rights and negotiations are basically established on good faith. This article examines the relationship between good faith and the mentioned rules and ultimately argues that although good faith is not merely considered as a source of obligations, it acts as a limitation, i. e. the fulfillment of this principle by States regulates the performance of their rights and obligations in the international community.

Though, in the International Law, fraud against law has been spoken of, fraud against law occurs in the scope of domestic law as well. Fraud against law in the domestic law is employment of correct and legal means to attain illegal goals and consequences. Theory of orientation, theory of abuse of rights and theory of good will are legal foundations of [the theory of] fraud against law. Sanctions for frauds against law are different in domestic and international law. In the domestic law, he who commits fraud wants to harm others; thus, a sanction protecting the rights of the victim will be sufficient and fraud against law, if some conditions are observed, will make the transaction null and void. The present writing tries to explain the rule of preventing fraud against law in domestic law and its sanction, and criticizes arguments posed by the opponents of the above rule. Finally, the present writing analyzes the legal status of contracts concluded on the basis of fraud against law.