Abstract

MIRAGEM, Bruno  and  BADIA, Ana Lúcia Seifriz. RETHINKING THE ABUSE OF RIGHT: LIMITS AND INTERPRETATION. Revista Internacional CONSINTER de Direito [online]. 2019, n.8, pp.559-580.  Epub June 28, 2019. ISSN 2183-6396.  https://doi.org/10.19135/revista.consinter.00008.32.

This article aims to rethink about the figure of abuse of right in nowadays. For this purpose is used the dialectical method, having as theoretical reference the functionalism, in order to define what is the main purpose of the institute in the contemporaneity and its close relation with the objective limits and the necessity of a new interpretation. At first, are provided differences between ilicit act and unlawful, making the relationship between this institutes and the abuse of right. The abuse of right constitutes unlawful act, as far as implies a violation of a legal order and not only against the law. After, the concept about subjective rights is examinated with a great importance to understand the concept of the abuse of right, that had an individual and subjective nature (tied to the notion of fault) adopted by the brazilian Civil Code of 1916. Subsequently, is explored the general clause of article 187 of brazilian Civil Code of 2002, with a special emphasis for objective element and the limits of the rigths exercise. The objective good faith, the trust, as well as the social and economic purposes are the limits to exercise the rights; with examples extracted from the brazilian and portuguese doctrines. At the end, according to constitutional principles (civil-constitutional interpretation of abuse), notably the solidarity, is demonstrated the necessity of aplication of the institute with emphasis for existential interests, greater than patrimonial interests, according to the ethical e with the pluralism.

Keywords : Ilicit act; Abuse of right; Limits; Interpretation; Solidarity.

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