Sham transactions in law: need advice?

Questioner

Can a sham act that is used to perform a legal act, thus abusing the law (which is used for something other than its intended purpose), be considered a threat, fraud or abuse, both in administrative law and in civil law? Thank you for your cooperation.

Lawyer

Your question isn't specific enough. That's probably why you're not getting an answer.

Questioner

A sham act, for example the declaration of a right of retention, for which there is no legal title, but which is nevertheless used to protect oneself, for example by working (laying a foundation) that has been carried out at one's own risk on the property of a third party (building land), for which no right of retention can/may be declared, because there is no enforceable claim, can this legal act be regarded as a threat, fraud or abuse?

Lawyer

I must say that I still find the example (which is what you're referring to) very general and unspecific. The situation in the case isn't entirely clear to me, but what can be said here is that you claim that there is a sham transaction and that there is no legal title, but why is that so, and if so, then it's a matter of proof. You will then have to challenge this in court. If this has already happened, or it's established that improper use has been made of a claimed right, then there could be a breach of contract or an unlawful act (if non-contractual), but in that case there must be liability and damages. Threats seem to me to be out of the question anyway (what exactly does the threat consist of?). Abuse isn't a legal concept, so I don't know what you're referring to. You would be wise to approach a lawyer, an attorney, or perhaps the Legal Aid Desk (Juridisch Loket) with your case and file to get the facts.

Questioner

Regarding abuse, my thinking rests on the "prohibition of abuse of rights." If you exercise a false right of retention to correct and/or secure your own mistake/error, then you are abusing the law, aren't you?

Lawyer

That doesn't change my answer as I gave it. You'll have to raise abuse of rights in a civil court if it also constitutes abuse of rights.

Questioner

My experience is based on; Abuse of rights / abuse of power / abuse of rights / abuse of rights (property law) "using a legal right solely to harm another. For example, declaring a person's right of retention to hit their pocket can constitute abuse; abuse of a power, including by invoking that power for no other purpose than to harm another." Article 3:13 of the Dutch Civil Code.

Lawyer

Day, The civil law and administrative law codes have transitional articles that allow for the invocation of, for example, fraud under Article 3:44 of the Dutch Civil Code in an administrative act. This is therefore possible (and vice versa).

Questioner

The ECHR prevails, in my opinion this can be invoked in both administrative and civil law, right? Article 17 – Prohibition of abuse of rights Nothing in this Treaty shall be construed as for a State, a group or a person the right to any to engage in any activity or perform any act with the aim to nullify the rights or freedoms set forth in this Treaty or to limit these further than provided for in this Treaty.