Francesco Longobucco

The loss of a right within the system of private punitive remedies

  • Abstract

Informations and abstract

Keywords: Loss of a Right; Verwirkung Theory; Abuse and Misuse of Power; Punitive Remedies (Ex Lege or Ex Voluntate); Heteronomous Penalty.

Moving from the intent to govern general clauses more rigorously than in the past, the following research assumes that the loss of a right may result, “stricto iure”, from the application of a civil penalty, provided for by the legislator or conventionally determined. Thus, it does not seem that the use of the objective good faith, as in the German theory of “Verwirkung”, may lead the interpreter to rule the loss of the right irreparably, without adequate review of the “voluntas legis” or where no explicit dismissive intention of disposable situation can be found. On the contrary, the loss of a right seems to be, more properly, a heteronomous penalty only for the cases characterized by conducts of misuse of powers.

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