Abstract

The provision of Art. 5 of the Civil Code is applicable when the exercise of a substantive right or entitlement is contradictory to the principles of social coexistence. The principles of social coexistence are understood as the rules of human conduct other than legal regulations and constructed on the basis of moral assessments sufficiently rooted in the society. In turn, the clause of socio-economic destination of the right concerns the purpose and destination of a given substantive right. It refers to the functional approach to substantive rights.

Restrictive rules for the application of this clause have been developed in jurisdiction. It is assumed that the clause is of a subsidiary nature, and therefore may not be used when it is possible to protect the interests of the person injured by misconduct of the other party with another legal provision. Moreover, the analysed provision may not lead to the loss of a substantive right and – accordingly – its acquisition by the other party. Further, it is also inadmissible to use Art. 5 of the Civil Code as a basis for an attack, since it is a tool merely paralysing the conduct contrary to the principles of social coexistence or socio-economic destination of the right. It is also assumed that the analysed clause provides only temporary protection; therefore, the charge of abuse of the right is merely dilatory. Finally, in accordance with the consolidated position of the doctrine and jurisdiction, abuse of the right may not be – as a matter of principle – referred to by the person who themselves behave in a manner contrary to the principles of social coexistence.

Article 5 of the Civil Code also indicated the consequences of abuse of the right. The construction of that clause has been based on the so-called internal theory of abuse of rights according to which the action of the abuser goes beyond the limits of a substantive right.