4 - A ‘Principle’ with No Rules?

Summary

Notwithstanding Josserand’s ardent and decades-long exhortations, the theory has remained controversial in France; a proposal in the mid-twentieth century to bring it into the Civil Code was abandoned. The Benetton case offers a troubling illustration of the potential for arbitrariness left in Josserand’s wake. Because its courts express themselves in English, Louisiana is a convenient example of the many civil law jurisdictions which pay lip service to abuse of right but scarcely apply it. The common law does just as well without it (as good judges everywhere, unenthusiastic about the expansion of judicial discretion, seem to prefer). The Himpurna case provides an illustration of the unnecessary invocation of abuse of rights.