Is the concept of abuse of rights still useful in Brazilian private law?

Abstract

The present work analyzes the relevance of the concept of “abuse of rights” under Brazilian Private Law. With this aim in mind, we shall present a discussion among legal scholars regarding the relevance of such concept: on one side, there are authors who argue that abuse of rights would have been incorporated by the good faith doctrine, as in a case of unacceptable exercise of rights in court, which is a concept of its own established in Germany as a further development of the good faith doctrine; on the other side, there are legal scholars who argue the relevance of the study of the abuse of rights on its own. In this sense, these scholars understand that the abuse of rights concept has a broader range of criteria, with additional aspects such as standards of “public decency” (bons costumes) and the “social function of law” (função social do direito).