Principle of Restrained Exercise of Rights: Origins, Legal Basis and Applications in Civil Law and Company Law

The principle of restrained exercise of rights, rooted in Roman law, has emerged with the aim of balancing opposing interests. The principle is a manifestation of the prohibition of abuse of rights under Turkish Civil Code (TCiC) Article 2. It originates from property law and is explicitly regulated in TCiC 786 governing praedial servitude. It also has an important place in the company law. Especially in the law of public limited liability companies, the principle has been adopted both in the doctrine and in practice as one of the tools to prevent and/or reduce the dangers of the majority rule and the abuse by the majority. Moreover, the principle is complementary to both the principle of equality in the law of obligations and the principle of equal treatment in the company law, which itself is an extension of the principle of good faith. In terms of both property law and company law, the principle draws the limits of the interference to be endured by the persons whose legal spheres are allowed to be interfered with through the exercise of certain rights. The study will first examine the principle from a terminological perspective, identifying provisions that are ‘directly’ related to it, and then address its origins in Roman law. Subsequently, the principle’s connection to the principle of good faith and the prohibition of abuse of rights under TCiC 2 will be examined. Finally, the principle is analysed in the context of property law and company law.