Appunti completi di Private law

PRIVATE LAW

LECTURE 1 – ON LAW AND LEGAL SYSTEM

BRIEF INTRODUCTION TO THE CONCEPT OF LAW

Law is a system created to provide order within a community.

It operates through rules adopted by a group of people to regulate coexistence and

individual activities. These rules are drafted by subjects who are given authority to do

so.

Law is necessary even in situations of conflict, such as war.

laws of war

The so-called regulate the conduct of parties during armed conflicts,

limiting the means and practices of warfare. Those who violate them lose the

protections afforded by international law.

A key point is that law, and especially private law, is a practical science: it is

not abstract theory, but a tool used to govern real-life situations.

The subject matter of this course is private law, which must be distinguished from

public law.

ON ITALIAN PUBLIC AND PRIVATE LAW

The Italian legal system is traditionally divided into public law and private law.

Public law governs:

the organization of the State and territorial public bodies (Regions, Provinces,

 Municipalities);

relationships between public entities when they exercise public powers;

 relationships between public entities and private individuals when supremacy

 of the public authority is involved.

Examples of public law include:

Constitutional law

 Administrative law

 Tax law

 Criminal law

 Criminal procedural law



Public entities pursue collective interests, exercise authoritative powers, and are

subject to public controls.

Private law regulates relationships between private individuals on:

a personal level,

 a family level,

 a patrimonial level.



It governs, for example:

obligations,

 contracts,

 tort liability,

 ownership and other property rights,

 commercial relationships,

 succession.



Private law also applies to legal persons (companies, associations, foundations).

The distinction between public law and private law does not depend on the nature

of the parties, but on the type of relationship:

supremacy → public law

 equality → private law



Even public entities may act under private law.

For example:

a public entity that causes unjustified damage outside the exercise of public

 power is liable under Article 2043 ICC;

a public entity may acquire land either through expropriation (public law) or

 through a sale contract (private law);

public companies operating in the market are governed by private law.



Modern private law is no longer only the “statute of individuals”, but a system based

on technical principles such as:

equality,

 autonomy,

 competition,

 prohibition of self-help.

 IUS,

THE CONCEPTS OF RIGHT, ORGANIZED COMMUNITY, LEGAL SYSTEM AND

STATE law

The word can be understood in two different ways:

objective law (the legal system as a whole),

 subjective right (an individual entitlement).

 law right,

In English this distinction is reflected in vs while in Italian both are

diritto.

expressed by

Etymology ius iussum

The Latin term derives from (command).

ius

From come terms such as justice, jurisprudence, jurisdiction.

A fundamental principle is:

Ubi societas, ibi ius

Where there is society, there is law.

Human beings are social by nature and tend to:

cooperate,

 form structured organizations.



This leads to the creation of an organized community, which is legally relevant

when:

1. there is non-random coordination among members;

2. rules are created and applied in a structured way;

3. rules are generally observed (principle of effectiveness).

A structured set of rules forms a legal system, whose function is to create order in

social life.

Political society and the State

The political society is the most important organized community.

Its purposes include: (no vim vi repellere licet);

preventing private violence

 protecting the community from external dangers;

 promoting welfare and development.



Modern States have expanded duties (education, health, work, environment).

A State is a community:

settled on a territory,

 sovereign,

 organized under a legal system.



The modern State emerged with the Peace of Westphalia (1648).

Supranational systems

Today, supranational entities exist, especially the European Union.

Relevant constitutional provisions:

Article 10 Italian Constitution

 “The Italian legal system complies with generally recognized rules of

international law.”

Article 11 Italian Constitution

 Italy repudiates war and accepts limitations of sovereignty to ensure peace and

justice among nations.

(NORME GIURIDICHE),

ORDERS, LEGAL RULES POSITIVE AND NATURAL LAW,

FACTI SPECIES

AND

An order is an act of command. It may concern:

general rules (legal rules),

 individual cases (judicial decisions).

 (norme giuridiche)

Legal rules are a general and authoritative rule of an

organized legal community.

It is binding because it comes from a source of law.

Legal rules must be distinguished from moral rules:

moral rules are autonomous and absolute;

 legal rules are heteronomous and relative to a legal system.



Some rules are both moral and legal.

ARTICLE 147 ICC - DUTIES TOWARDS CHILDREN

Marriage imposes on spouses the obligation to maintain, educate and morally assist

children.

Legal rules consist of:

the text,

 the precetto (meaning resulting from interpretation).



Interpretation is unavoidable and regulated by law (see Articles 12 and 14 Preleggi).

Positive law and natural law (ius positum).

Positive law: law in force

 Natural law: universal principles used as a criterion to evaluate positive law

 and avoid arbitrariness. facti species

Structure of legal rules and

Legal rules are general and abstract, expressing the principle of equality.

A legal rule consists of:

a facti species (description of a hypothetical fact),

 a legal consequence.



Article 1453 ICC - Termination of contract due to non-performance

In contracts with mutual obligations, non-performance allows the other party to seek

performance or termination, plus damages.

facti species:

Types of

1. Simple (e.g. Article 456 ICC – opening of succession);

2. Complex (multiple legal acts required);

3. Progressive (effects depend on future uncertain events).

Article 456 ICC – opening of the succession

Legal rules are connected to remedies, such as:

criminal sanctions,

 coercive measures,

 specific performance.



Article 2932 ICC

Allows a judgment to produce the effects of a contract not concluded when a party

fails to perform.

However, not all legal rules provide sanctions.

Article 1322 ICC – Contractual autonomy

Main Provisions

1. Freedom to Determine Contract Content

Parties are free to define the content of their contract, provided they respect the

limits imposed by law. This ensures contractual autonomy while safeguarding

public order and mandatory rules.

2. Atypical Contracts

Parties may also create contracts that do not belong to any legally regulated

(atypical contracts),

type as long as these contracts pursue interests worthy

of protection according to the legal system.

This clause allows flexibility and innovation in contractual relationships.

o However, the interests pursued must align with legal principles and not

o conflict with public policy.

Article 1322 balances individual autonomy with legal safeguards:

It promotes freedom in private agreements.

 It permits atypical contracts, provided they serve legitimate and socially

 acceptable interests.

It reflects the dynamic nature of contract law, adapting to evolving social and

 economic needs.

Article 315-bis ICC

Children must respect parents and contribute to family maintenance: a legal rule

without direct sanction.

LECTURE 2 – SOURCES OF ITALIAN LAW, JUDICIAL

ACTIVITY, AND INTERPRETATION OF LAWS

The sources of Italian law are the acts or facts from which legal rules originate.

The current hierarchy of sources is:

1. The Constitution

2. Ordinary laws of the State

3. Regional laws

4. Regulations

5. Customs

In addition to these, there are extra-ordinem sources, especially European Union

law: EU regulations (directly applicable),

 EU directives (binding as to results).



This system implies a limitation of State sovereignty, expressly accepted by Italy

under Article 11 of the Constitution.

ARTICLE 1 OF THE PRELEGGI (1942 CIVIL CODE) - INDICATION OF THE

SOURCES

the sources of the law are:

laws

 regulations

 corporate provisions

 customs



This list differs from the current one because:

1. corporate provisions were abolished (Legislative Decree Lt. 369/1944);

2. the Italian Constitution entered into force in 1948.

Hierarchy of sources

ordinary laws must comply with the Constitution;

 regional laws must respect State principles (Art. 117 Const.);

 regulations must not contradict laws (Art. 4 Preleggi);

 customs are relevant only if recalled by laws or regulations (Art. 8 Preleggi).



The Constitution is the fundamental law of the Italian legal system.

It regulates:

fundamental principles,

 organization of the State,

 rights and duties of citizens and social groups,

 relationships between citizens and the State,

 relationships among private individuals.



Therefore, the Constitution also contains fundamental rules of private law.

Examples:

Article 30: duties of parents,

 Article 36: right to work,

 Articles 18–19: freedom of association and religion,

 Articles 42 and 47: ownership and savings.



Ordinary laws are invalid if they conflict with the Constitution.

Article 134 Italian Constitution

The Constitutional Court judges:

constitutional legitimacy of laws and acts having force of law;

 conflicts of attribution among State powers and between State and Regions;

 accusations against the President of the Republic (impeachment).



Article 2 Preleggi

Formation of laws and enactment of governmental acts having force of law are

governed by constitutional laws.

For private law purposes, the following are treated as ordinary laws:

stricto sensu,

laws

 decree-laws converted into law,

 legislative decrees,

 the Civil Code and connected laws.



ARTICLE 15 PRELEGGI – REPEAL OF LAWS

(non approvata) A law may be passed:

expressly,

 by incompatibility,

 because a new law governs the entire subject matter.



Examples of legislative evolution:

consumer contracts (from ICC to Consumer Code),

 family law reform (1975),

 company law reform (2003).



Private law today is largely governed by special legislation outside the Civil Code,

such as:

insurance law,

 divorce law,

 banking law (Leg. Decree 385/1993),

 financial law (Leg. Decree 58/1998).



REGIONAL LAWS

The Constitution distinguishes between:

Regions with special statute,

 Regions with ordinary statute.



Article 116 Italian Constitution

Recognizes special autonomy for certain Regions and allows additional autonomy

under specific conditions.

Article 117 Italian Constitution

Divides legislative power into:

1. exclusive state legislation (e.g. foreign policies);

2. concurrent state-regional legislation (ex. foreign trade);

3. exclusive regional legislation (default rule)

Civil law falls under exclusive State competence, ensuring uniformity.

REGULATIONS

Regulations are subordinate sources of law.

Article 3 Preleggi

Government regulations are governed by constitutional laws;

 other authorities issue regulations within their competence.



Article 4 Preleggi

Regulations:

cannot contradict laws,

 subordinate regulations cannot contradict Government regulations.



In private law, regulations often implement and specify laws, for example in

commercial instruments (e.g. bills of exchange).

CUSTOMS

Customs arise from constant and uniform practice.

Article 8 Preleggi

Customs are effective only when referred to by laws or regulations.

Examples in the Civil Code:

Article 892 ICC – distances for planting trees;

 Article 1326 ICC – time limits for acceptance of a contractual proposal;

 Articles 1340, 1374, 1733 ICC – clauses of use, integration of contracts,

 agents’ fees.

Customs become law only if they include:

an objective element (constant practice),

 a subjective element (belief in binding force).



ARTICLE 9 PRELEGGI – BOOKS ON CUSTOM

In the Italian legal system, judicial activity primarily consists of applying and

concretizing legal rules—that is, adapting the general and abstract provisions of

the law to the specific case under examination.

Legal rules are general and abstract, governing categories of behavior.

Judicial decisions concern specific and concrete facts.

The subject matter of legal rules involves individual behaviors, which may be lawful,

(facti species)

unlawful, legal, or illegal, and which fall within the scope of the relevant

legal provision.

Judicial reasoning follows a syllogistic structure:

Minor premise: The fact of the case.

 Major premise: The applicable legal provision.

 Conclusion: The judgment.



This process requires:

1. Establishing the facts. jura novit curia

2. Identifying the correct legal rule (under the principle – “the

court knows the law”).

3. Interpreting the law.

Interpretation is a general and unavoidable task, not limited to poorly drafted

provisions but also necessary for apparently clear ones.

(L’interpretazione delle leggi e dei casi, è necessario ed inevitabile sempre,

soprattutto per le disposizioni mal presentate ma anche se i casi sembrano semplici).

Examples:

Art. 2645-ter ICC (imperfect drafting).

 fondo

Art. 170 ICC (concept of “family” and “family needs” in the context of

 patrimoniale).

Every term and statement must be examined to determine whether its scope extends

beyond its usual application.

ARTICLE 12 PRELEGGI – INTERPRETATION OF THE LAW

Article 12 sets out the fundamental rules for interpreting legal provisions in the Italian

legal system.

Main Principles

1. Literal Interpretation

The starting point is the proper meaning of the words, considering their

connection within the text. This ensures that interpretation remains faithful to

the language of the law.

2. Legislator’s Intention

Interpretation must also reflect the intention of the legislator, which can be

(lavori preparatori).

understood through preparatory works The legislator is seen

as the embodiment of rationality, and the preferred interpretation is the one

that fulfills the law’s purpose and aligns with the broader legal system.

If a case cannot be resolved by a specific rule:

Apply analogia legis: use provisions governing similar cases or analogous

 subject matters.

If still uncertain, apply analogia iuris: refer to the general principles of the

 legal system.

On Analogy (ratio)

Analogy involves extending the rationale of an existing rule to a case not

expressly regulated.

Example:

Comparing provisions on free-of-charge contracts:

Art. 1768 ICC (deposit)

 Arts. 789, 798 ICC (donation)

 Art. 1710 ICC (agency without compensation)

 Art. 1812 ICC (loan for use)

 Art. 1821 ICC (interest-free loan)



From these, we infer that liability is generally lower in gratuitous transactions

than in those for consideration. This conclusion comes from examining the

underlying rationale of these provisions.

Dynamic Nature of Interpretation

Interpretation evolves over time:

When laws change or new provisions are enacted.

 When society changes (e.g., Art. 1322 ICC on “interests worthy of protection”

 and the development of leasing contracts).

Preparatory works lose importance as time passes.



ARTICLE 14 PRELEGGI – APPLICATION OF CRIMINAL AND EXCEPTIONAL LAWS

Article 14 establishes that criminal laws and laws that are exceptional to

general rules apply only within the specific cases and timeframes expressly

provided by those laws. This principle limits the scope of such laws, preventing

their extension beyond what is explicitly stated.

On the Exceptionality of a Law

Certain provisions are exceptions to others. For example:

Article 2047(2) of the Italian Civil Code (ICC) is an exception to Article 2046 ICC.

 Both are exceptions to Article 2043 ICC, which itself limits the principle of

 freedom of action.

Importantly, exceptionality is not merely a logical or formal concept but a

legal-political one. For instance, laws enacted during wartime are exceptional

compared to those in peacetime.

Interpretation of General Clauses

Some legal provisions contain general directives rather than detailed rules,

leaving it to jurisprudence to develop and specify their application. Examples include:

Just cause justified motive.

or

 Interests worthy of protection (Art. 1322 ICC).

 Unfair damage (Art. 2043 ICC).

 Good faith (Arts. 1337, 1366, 1375 ICC).

 Good custom (Art. 1343 ICC).

 Diligence of a good family man (Arts. 382, 1176 ICC).



In these cases, judges must integrate and identify the applicable rule, but this

does not grant unlimited discretion—their role is interpretative, not legislative.

On Equity (Aequitas)

Equity represents flexibility and fairness, contrasting with the rigidity of strict legal

rules. It reflects the ideal of justice adapted to the circumstances of each case.

In civil-law systems, equity differs significantly from “Equity” in common-law

 systems.

Examples in the ICC:

 Art.