L’abuso del diritto: alcune riflessioni tra Italia e Inghilterra

Abstract

This article focuses on the abuse of rights in the comparative perspective between Italy and England and examines

the possible future application of the English abuse of rights also in the light of the recent cases Braganza v BP

Shipping Ltd and Cavendish Square Holding BV v Talal El Makdessi, which have identified two specific

hypotheses potentially referable to forms of abuse of rights respectively in the matter of the exercise of unilateral

contractual discretionary powers and damages clauses. Although in England, unlike in Italy, there is not

traditionally a general doctrine of the abuse of rights, the specific hypotheses referred to above underline how a

substantial prohibition of abuse of rights, inspired by a ratio of social solidarity, may perhaps in the future be applied

to further and new specific situations, thus determining the increase also of the possible forms of judicial protection in

the case of misuse of rights.