Finally, however, the problem of the limits which should be assigned to the principle of the autonomy of the will in the creation of individual rights, will be shown to be governed largely by a general principle which constantly manifests itself also in all those legal problems which by their very nature cannot be within the jurisdiction of the direct exercise of will by private individuals, or which have been definitely given over to some other form of regulation. This principle, which one may call that of the equilibrium of the interests concerned, must be the guide of the courts, as it should be that of the legislator and the guardians of legal custom, in all those cases where there is no sufficient and valid agreement between the parties, so that it becomes necessary to establish authoritative rules of conduct such as constitute positive legal order. The object held in view by this principle is nothing but that of giving the greatest possible satisfaction to the wishes of the various parties consistent with the realization of the social purposes of mankind. The general method of accomplishing this purpose is to recognize all the conflicting interests concerned, to estimate their respective force, to weigh them, as it were, in the scales of justice so as to give the preponderance to the most important of them tested by some social standard, and finally to bring about that equilibrium between them which is so greatly to be desired.
It will readily appear that the legislator also proceeds in the same way when he enacts provisions intended to supplement or regulate private acts, if one analyzes in detail certain statutory provisions in cases where the conflict of interests is particularly apparent.8 We need not speak of certain traditional doctrines which our modern statutes have adopted in an elliptic form, such as the theory of the Pauline action, with the necessary conditions under which it may be maintained according to the nature of the deed drawn into question (to wit, whether it was given for a consideration or not), and the good or bad faith of the defendant.9 Apart, however, from these special applications of the principle, it would be easy to show how the same legislative intention reappears in the greater part of all the doctrines in our private law, even in those which are frequently explained on purely logical grounds. Such for instance is the theory of title by accession,10 of setoff,11 in which logic really does not come in except secondarily and, so to speak, as the technical instrument of equity, which itself is grounded on the principle of the equilibrium of interests which in all these subject-matters is entirely dominant.
8 I cite, as they come to my mind at random, sections 549, 555, 1116, 1238, 1240, 1299, 1377 line 2, 1384, 2037, 2131, 2265, 2279-2280 of the Civil Code and 216 of the Commercial Code, as examples of particular probative value.
9 See section 1167 of the French Civil Code; sections 446-447, Commercial Code.
10 Sections 551-577, Civil Code.
11 Sections 1289-1298, Civil Code.
Free legal decision on the basis of scientific investigation ought to do within its own field what the written law does for those portions of the law which have seemed to stand in need of more definite regulation. Our courts have recognized this doctrine, to the great scandal of certain authors, when they have held valid in favor of third parties acts of an heir-apparent affecting an estate which finally does not go to him - at least in some particularly equitable cases; or when they have established a whole system of presumptions in aid of title by prescription, in order to make possible or easier the proof of title to real property; and similarly when they have upheld the full force and vigor of the ancient adage: "Quae temporalia ad agendum perpetua ad excipiendum." Is not the same thing true in certain peculiarly delicate cases of conflicting interests, which have been very happily settled in actual practice, such as those growing out of the existence, at the same time and in the same property, of special mortgages and general mortgages of prior rank? It is not different when the statute is silent or ambiguous and the courts have to decide whether the surety or a third party in actual possession of the land mortgaged for the guaranteed debt are to be subrogated to the rights of the mortgagor.12 Again, how can the legal maxims applicable to such matters as the secrecy of confidential letters, the ownership of letters sent, or the right to use a family name, which can be understood in so many different ways, be satisfactorily and equitably applied except by balancing all the interests involved one with the other? As a matter of fact, the tendency recently has been less and less to refrain from accepting such a method of interpretation, even where the result seems to run counter to some positive statute, at least where the statutory provisions leave an opportunity for broad construction in favor of an evident equity. Occasionally the courts have gone even farther in the direction of free decision and forgotten the bounds necessarily set to the creation of law by this method, notably in those cases where forms of lien have been recognized for which there was no provision at all in the statute.
12 As provided by section 1251, subs. 3 of the Civil Code.
On condition, however, that such excesses be avoided, of committing which there is at present little danger anyhow, on account of traditional tendencies to the contrary, the science of administering the law could not do better than frankly to adopt, where the formal sources of law are silent, this method: to seek the solution of all legal questions, which necessarily grow out of the conflict of various interests, by means of an accurate estimating of the relative importance and a judicious comparison of all the interests involved, with a view to balancing them against each other in conformity with the interests of society. For example, in this manner it would no doubt be possible to solve one of the most important problems in law, which in one form or the other is liable to arise in every lawsuit, the importance of which Jhering has emphasized a number of times, and regarding which our statutes are very nearly silent, to wit, the problem of stating which party has the burden of proof under the various legal conditions which may arise.
By the same method we may also, I believe, find the means of defining a doctrine which has hardly been more than touched upon by our court decisions, to wit: what constitutes an abuse of right, so as to make the party exercising it liable. Although the absolute formulas of the Roman law have come down to us, our modern legal conscience rebels more and more against the idea that the exercise of any right can be without limits. This tendency shows itself in a doctrine which finds much favor to-day, refusing to apply the traditional maxim "Neminem laedit qui suo jure utitur" in all cases where a real abuse of a right is apparent. This doctrine, which has for a long time been upheld with regard to certain abuses growing out of the ownership of land and supplements in a measure the code provisions relating to the rights of adjoining owners, has in these latter days been invoked against certain manifestations of individual liberty which have required repression by private law because they encroached on the rights of others. It may readily be seen that the great difficulty with this theory, which taken by itself is not likely to be much disputed, is in the clear definition of what constitutes an abuse of right, exceeding its legitimate exercise to such an extent that it gives rise to a legal liability. May we take as the distinguishing characteristic of such an abuse, from a moral and psychological point of view, the intention of injuring another while apparently exercising a right? That would be nothing but a return to the much decried doctrine of "emulation" [some forms of unfair competition] and to the maxim which is so hard to apply: "Malitiis non est indulgendum." My personal opinion rather leads me to believe that the true and just limitations of individual rights will be discovered only by an examination of their economic and social object, and a comparison of the importance of this object with that of the interests opposed to it. However that may be, it suffices here to observe that this important question of the abuse of rights, regarding which our statutes are almost completely silent, can be solved in a judicious manner only by the balancing of all the ethical, political, social, and economic considerations which enter into the conflict of the interests involved.