Abuse of right, nuisance Flashcards
Briefly give the main principles (or primary guidelines) that can be used to determine whether there was an abuse of rights in a particular case
a) As a general rule, the owner of immovable property may use his property as he sees fit, as long as he acts within the bounds placed by the law on his powers of ownership.
b) Given that an owner is not completely free to utilise his property as he wishes, his interests in exercising his right of ownership must be weighed against the interests of his neighbour.
c) The basic question is still one of wrongfulness; it concerns the reasonable or unreasonable utilisation by the defendant of his property.
d) Where the benefit which the actor derives from his conduct is exceptionally slight but, by contrast, the nature of his conduct is very drastic and the harm caused to his neighbour is relatively serious, he exceeds the bounds of reasonableness and acts wrongfully. Such an unreasonable act is wrongful despite the fact that the actor did not intend to harm his neighbour; any use of property which fails to advance reasonable interests is thus wrongful, whatever the motive of the actor may be.
e) Where the actor harms his neighbour in the process of advancing his own reasonable interests, he does not act wrongfully even if he intends (or has the improper motive of) harming his neighbour in the process. Improper motive is in itself insufficient to convert lawful conduct into a wrongful act.
What role does malice (animus vicino nocendi) play in the doctrine of the abuse of rights? Discuss, referring to common law and case law
- In considering the reasonableness of the wrongdoer’s conduct, his mental disposition plays an important role (Gien and Regal cases).
- The presence of malice on his part may be a strong indication of the unreasonableness of his conduct.
- Although the reasonable utilisation of a person’s property cannot be termed unreasonable merely because of an intention to prejudice another, in many instances it is extremely difficult to determine to what extent a wrongdoer promoted his own reasonable interests.
- In such a case, the wrongdoer’s own, subjective view of the reasonableness of his conduct may be an important aid: if he did not consider his conduct to be a reasonable way of advancing his interests (and this will necessarily be the case where his exclusive aim is to injure the prejudiced person), he can hardly complain if his conduct is considered unreasonable.
- For this reason, conduct with the exclusive aim of harming a neighbour (animus vicino nocendi) (eg the conduct of a person who builds a chimney with the exclusive purpose of obstructing his/her neighbour’s view) is, as a general rule, wrongful.
- In other words, an improper motive renders an act, which would have been lawful but for such motive, wrongful if it prejudices a neighbour without benefiting the actor in any way (Gien case).
- Where the wrongdoer harms his neighbour in advancing his own reasonable interests, he does not act wrongfully, even if he has the improper motive to harm his neighbour in the process.
- Improper motive in itself is therefore insufficient to convert lawful conduct into a wrongful act.
- However, where the wrongdoer acts unreasonably (eg where the benefit that he derives from his conduct is exceptionally slight, but, on the other hand, the nature of his conduct is very far-reaching and the harm caused to his neighbour relatively serious), he exceeds the bounds of reasonableness and acts wrongfully, despite the fact that he had no intention to harm his neighbour.
- Any use to which an actor puts his property, in which he fails to advance his reasonable interests, is thus wrongful, whatever his motive may be.
