ABUSE OF RIGHTS AND TORT LAW: A CRITICAL APPROACH TO STATEMENT 37 OF THE FIRST JORNADA DE DIREITO CIVIL

Abstract

This article criticizes the statement 37 of the frst Jornada de Direito Civil, according to which “civil liability arising from abuse of rights does not requires fault and is based on the objective-fnalistic criterion”. It is pointed out that abuse of rights is a concept employed by courts to determine duties of care, and that it should not be used to oppose subjective unlawfulness to objective unlawfulness. This text also deals with the relation between abuse of rights and remedies, namely prohibitory and mandatory injunctions, and explains how German private law distinguishes between fault and unlawfulness