- Tribunal de Apelación en lo Civil y Comercial de Asunción, Quinta Sala
- Florencio Javier Llano Perez y otros v. Hugo Codas Thompson Benza y otros
DISPUTE BETWEEN TWO PARAGUAYAN CITIZENS - REFERENCE TO THE UNIDROIT PRINCIPLES TO INTERPRET APPLICABLE DOMESTIC LAW (PARAGUAYAN LAW)
INTERIM MEASURE – PROHIBITION TO CONTRACT WITH THIRD PARTIES – CONSIDERED TO BE EXCESSIVE - ABUSE OF RIGHTS
NOTION OF BAD FAITH - INTERPRETED IN ACCORDANCE WITH ARTICLE 2.1.15(3) OF THE UNIDROIT PRINCIPLES
Claimant, a Paraguayan citizen, filed a civil lawsuit against Respondent, another Paraguayan citizen, seeking compensation for damages deriving from an alleged excessiveness of the interim measure granted in a previous judicial proceeding between the same parties. The Claimant argued that the interim measure in question, namely the prohibition to contract with third parties, was unnecessary and therefore constituted an abuse of rights.
The Court of Appeal, however, held that the contested interim measure was consistent with the right it had intended to protect, since it was granted to defend a legitimate right over a land parcel, which might have suffered irreparable damage if had it not been safeguarded by the conferred measure. Therefore, the Court confirmed the first instance decision and rejected Claimant´s request for damages.
One of the three judges of the Court of Appeal, in considering that the good faith principle is present throughout various dispositions of the Paraguayan Civil Code but there is no definition of the concept of bad faith, referred to Article 2.1.15(3) UNIDROIT Principles and concluded that Respondent in the present case did not act in bad faith, since the interim measure granted was intended merely to protect its legitimate claim.