Abuse of rights in Scots and English law : a workable doctrine, in the public interest?

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Combe, Malcolm (2025) Abuse of rights in Scots and English law : a workable doctrine, in the public interest? European Review of Private Law, 33 (4). pp. 903-928. ISSN 0928-9801 (https://doi.org/10.54648/erpl2025051)

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Abstract

This paper considers the doctrine of abuse of rights in the neighbouring jurisdictions of Scotland and England, with a particular focus on property law. As shall be explained, both jurisdictions afford limited or indeed very limited space to restrict an owner from undertaking an otherwise lawful act that is done out of malice to another. For better or worse, this also curtails any considerations of wider collective interests to militate against the actions of an owner by private law means. That notwithstanding, the paper provides an analysis of wider notions of abuse of rights in Scots and English law, details when the Scots law doctrine of aemulatio vicini could still theoretically apply to forbid an abuse of rights, and highlights alternative devices that could protect a neighbour or indeed the wider public from the whims of a landowner.

ORCID iDs

Combe, Malcolm ORCID logoORCID: https://orcid.org/0000-0002-1711-9150;
CORE (COnnecting REpositories)