Uwagi o tymczasowym i definitywnym następstwie zastosowania konstrukcji nadużycia prawa podmiotowego

Abstract

The legal construction of the aspect of abuse of substantive right is one of the most important manifestations of equitable principles in civil law. Article 5 of the Civil Code, which contains the aforementioned regulation, may be applied together with the doctrine and case law principles, such as: prohibition on the acquisition and loss of substantive right, based on such acquisition; the defensive nature of the allegation of abuse of rights; or the rule of temporary effect of the condition of abuse of rights. The latter, according to the most dominant view, means that the substantive right may be exercised after the cessation of the circumstances justifying the allegation of abuse of rights. However, in exceptional cases, this does not preclude the occurrence of a permanent condition, which is equivalent to the actual loss of rights. A particularly important example of a permanent effect of the condition of abuse of rights is the possibility, widely accepted in the jurisprudence and part of the doctrine, of reducing the amount of legitimate portion due to the entitled party on the basis of Article 5 of the Civil Code.