Abuse of rights in Maltese jurisprudence : a civil law concept within a mixed jurisdiction

Abstract

This dissertation provides an overview of the concept of abuse of rights, its principles and its historical characteristics. An inquiry takes the notion as understood under civil law, common law and mixed jurisdictions, attempting a comparative analysis which yields identifiable sources and general elements which make up the notion. This is carried out through a study of doctrinal works and related legislative texts. The choice of jurisdictions under study is based on those which appear to have influenced the making and the development of the concept as found under Maltese tort law today. Relevant legislative texts dealing with the notion bring forth the accepted standards. An analysis of court judgments, nonetheless, exposes also other trends. A study of Maltese jurisprudence, keeping also in mind the comparative perspective, seeks to determine whether elements identified as emanating from the notion are mere characteristics, or whether they are requisites without which Maltese courts have deemed that although damage has been suffered by the plaintiff, the defendant cannot be held liable for tort. Diverging interpretations of abuse of rights are implicit by the various jurisdictions considered. It shall be seen how their position stems from the differences in their history, ideologies and culture. Despite the fact that the course taken by the jurisdictions studied has not always followed the original civilian form, parallel ends are usually reached. The French system appears to remain the central model by which other jurisdictions continue to be inspired. In serving a parallel purpose to the general fault clause, yet on its own accord, the application of the specific Maltese legislative text dealing with abuse of rights, Art.1030 of the Maltese Civil Code may be assimilated to the generous function given to the concept under French law, perhaps even going a step further by doing away even with the general fault requisites where the facts of the case so necessitate. It shall be exposed through a comparative analysis of abuse of rights under all jurisdictions studied, how the Maltese notion tends towards offering the most flexible and all-encompassing approach, this by employing its rationale of a mixed jurisdiction, typified by its customary blending of the civil and the common law.