The abuse of the law, with particular regard to the abuse of the process

The issue of the abuse of process is, to date, vexata quaestio of the doctrine and the jurisprudence.

A comprehensive discussion of this issue requires a general premise on the prohibition of abuse of rights.

First of all, the abuse of rights occurs when the holder of a right, legitimately granted to him by the law, exercises it incorrectly or deviates from it, and for other purposes in respect of which the right is recognised.

The prohibition of the abuse of rights is a general principle which has roots in the good faith, expressly provided for in the article 1175 c. c. c., which imposes a correct demeanour in the fulfilment of obligations. In addition, the aforesaid behavioural canon is protected by constitutional law, in virtue of art. 2 of the Constitution, which let rise a duty of social solidarity to all citizens.

In light of this positive obligation of constitutional nature, each entity is obliged to pursue their own interests without therefore, sacrifice the legal position of the other, whom are recognized equal rights; the more recent jurisprudence of legality considered that the abuse of rights is a fee to verify the violation of good faith (Cf. Cassazione Civile (Italian Civil - Supreme Court of Appeal) Sect. III, sent. n. 20106/2009).

To debate of the issue that is important in this article, namely the abuse of the process, the latter occurs if the holder of a right of action exercises it incorrectly and for purposes other than those of the corresponding substantive law.

In particular, the most significant case of abuse of the process is represented by the judicial fragmentation of a unitary claim, deriving from the same report.

This is the case when the creditor takes legal action several times to obtain the benefit deducted from the obligation arising in his own favour, despite the fact that the same claim is covered by the same title and takes the form of a unitary claim.

Therefore, at an early stage of the jurisprudential evolution in this matter, the prevailing thesis was oriented in the sense of considering such a practice to be perfectly in line with the law system.

And this, for two reasons,

First of all, it was considered that the creditor, who is recognised the article 1181 of the Italian Civil Code as entitled to accept partial performance of the performance, had the same right of action for such partial performance.

It noted, beside, that such conduct was in accordance with the principles of due process, under art. 111. Since the creditor could take legal action in order to obtain the fulfilment of part of credit not contested and then agreed in judgment the debtor to obtain the fulfilment of part of the credit whose livelihoods was more difficult to ascertain.
Subsequently, the Supreme Court overturned this orientation by stating the following principle of law:

"With the sentence no 23726 of 2007 the Cassation intervened on the matter and, changing the old orientation (sent. # 108 of 2000), argued that it is not allowed the creditor to a certain sum of money due to "a single report required", multiple loan requests, partitioning the Court of execution, contextual or staggered over time. This demerger of the contents of the obligation, actuated by the creditor for its sole utility with the debtor's position, is worsening unilateral contrary both to the principle of fairness and good faith with both the constitutional principle of due process, because the fragmentation of direct question to the satisfaction of the creditor's claim results in abuse of procedural tools sorting offers part, within the limits of proper protection of its substantial interest. "

Recently, the Court of laws has again intervened in the matter, in order to outline the compatibility with the principle of the prohibition of abuse of rights of the demerging of multiple claims, deriving however, from the same report.

On this point, a direct element constitutes the concrete interest of the creditor to request the aforementioned performance, splitting the claim into several actions, without this sacrificing unjustifiably the debt position.

In particular, the Court noted that the questions concerning different and distinct rights, although relating to the same ratio of duration between the parties may be submitted in separate processes. Nevertheless, if such claims as well as claims to the same ratio between the same parties, are also, “inscribed in the same objective aim of a possible judged or otherwise, based on the same event, so that it cannot be assessed separately if not at the cost of a duplication of investigative activities and a consequent dispersion of knowledge of identical substantial matter. The relative questions can be formulated only if it appears on the part of the creditor an interest objectively assessable to the fractional procedural protection, and, whether is missed the corresponding deduction, the judge who intends to make it an object of survey, must indicate its question under art. 183, c.p.c., giving, where appropriate, the decision ending the parties for the filing of pleadings pursuant to art. 101, co. 2. c. c. p. c." 2, c. c. c. (See  Court of appeal, Cassation, 16 February 2017, # 4090).

In light of this examination, the following cannot fail to be observed.

The application field of the abuse of the law, since is not expressly provided for in the code and, on the contrary, as an institution of a pretentious nature, is certainly destined to expand and, this extension, is certainly left to the interpretative and creative work of the jurisprudence.