Private Law, Diritto privato

PRIVATE LAW

In contemporary legal systems, two main traditions prevail: the civil law system and the common law

system. The civil law system, in countries such as Italy, is based on written codes, primarily the Civil

Code. Conversely, the common law system, typical of the United States and the United Kingdom, is

largely based on judicial decisions, meaning that precedents established by courts form a fundamental

part of the law.

The aim of private law is to resolve conflicts and to prevent them. Traditionally, private law includes

relationships between private persons. In the 1990s, the Italian Civil Code began to be conceptually

divided into civil law and commercial law. Private law applies when the parties are equal, on the same

level, whereas public law applies when one of the parties holds a position of authority over the other.

Due to the greater flexibility that private law offers, public bodies such as governments and

administrative agencies employ instruments of private law in their dealings with individuals and with each

other.

Private law primarily concerns economic values, including rights in property, contracts, obligations and

damages. It also regulates economic activities and governs both natural persons (human beings) and

legal persons (such as associations and foundations, which are treated differently according to the first

group of the Civil Code). Although family law and succession upon death are also part of private law,

they are often treated separately in legal education.

LEGAL RULES

Legal rules prescribe human conduct. They are always general and abstract, meaning that they apply to

different, but similar situations and to different individuals. When someone violates a rule, a sanction

usually follows. The judge’s task is to apply these general and abstract rules to real, concrete cases

called fattispecie. To do this, the judge must interpret the rule and decide whether the facts of the case

correspond to what is described by the law. The decision about which article or code applies depends on

the specific subject matter.

SOURCES OF LAW AND INTERPRETATIONS

The sources of Italian law are mainly acts of Parliament, also called statues. Legislative powers are

exercised by both houses of the Parliament: the Senate and the Chamber of Deputies. Because Italy is

part of the international community, its legal system recognizes several types of sources: national law

sources (made by the italian government or parliament, it’s the constitution, state law, decree law),

international law sources (part of international organization) and European Union law sources

(allowed by the fact that in our constitution we have a law that recognizes international agreements to

whom Italy is part).

The relationship among them follows four main principles:

●​ the hierarchical principle, like a pyramid in which EU law comes first, followed by international

law, then national law

●​ the chronological principle: last law abrogated

●​ the speciality principle: special rules apply only within their specific field

●​ the competence principle: provisions, some institutions can issue rules only in certain matters

The sources of the italian law can be listed as follows:

Constitutional sources

1. The Constitution of the Republic

2. Constitutional amendments and constitutional laws PArt. 138 Const.

Primary sources of law (Art. 70 Const.)

1. Ordinary state laws (also referred to as statutes)

2. Acts having the force of law

a) Legislative decrees (Art. 76 Const.)

b) Decree-laws (Art. 77 Const.)

Regional legislation (Art. 117 Const.)

Secondary sources

Domestic regulations

Customs and usage

These legislative acts are also called sources of production because they produce law.

1.CONSTITUTION:

The Italian Constitution, written in 1947 and became effective in 1948 after World War II, was drafted

by representatives of socialist, Catholic, and liberal political groups. The Italian Constitution is a rigid

constitution, which means that its terms cannot be modified by ordinary legislative procedure, but only

with a special amending procedure: the Constitution Constitutional laws. Changing the Constitution

requires approval by both chambers of Parliament twice and a referendum, although some articles

cannot be modified.

CONSTITUTIONAL COURT

It’s a special court that can declare a statute unconstitutional if an ordinary state law is in conflict with the

provision of the Constitution. It has this power only in the course of a judicial proceeding in which a party

claims that this statute is relevant to the decision, the so-called incidental action.

The Constitution sets out the main principles of the State and fundamental rights, which also guide the

interpretation of private law. The first articles declare the fundamental principles of the Italian Republic

from 1 to 12. The others are divided into two parts:

-​ the first part includes constitutional rights and duties and divides them into: civil rights, ethical and

social relations, economic relations and political rights.

-​ the second part describes the organization of the Republic

Conforming interpretation applies to the interpretation of

1.​ general clauses and general principles contained in the civil code and legislation on private law

(public order, good practice and good faith)

2.​ standards of evaluation like diligence and honesty

3.​ other general formulae such as “actual circumstances” and £the nature of things”

Examples of the Constitution include the freedom of association (Art. 18), equality before the law (Art. 3),

the right to property (Art. 42) used for general goods, freedom of private enterprise (Art. 41, limited by

considerations of freedom, safety, and health) and family protection (Arts. 29–31). Important reforms,

such as the introduction of divorce in the 70’s and the recognition of civil unions in 2016, were inspired

by these principles.

2.PRIMARY SOURCES

Primary legislation includes ordinary state laws (statutes) and acts with the force of law, such as

legislative decrees and decree-laws. Statutes are fully debated and enacted by Parliament; they include

both the main codes (civil, criminal, procedural) and special legislation on specific topics, such as

family law, marriage dissolution, or leases. Over time, Italian law has undergone a process of

“decodification,” with many important rules now placed outside the main codes.

●​ Decree-laws (decreti legge) issued by the government in cases of emergency, valid for only

sixty days unless converted into statute by Parliament. The Government often uses decree-laws

even beyond strict emergencies.

●​ Legislative decrees (decreti legislativi) enacted by the Government based on parliamentary

delegation, usually regulate technical fields like consumer law, finance, or environmental matters.

●​ Regional laws (leggi regionali) adopted by regional councils, particularly in matters such as

health care and construction, where regional competence applies so they may differ across

regions. Article 117 establishes the authority of the regions.

3.CIVIL CODE

The Italian Civil Code issued in 1942 and inspired by the French Code Civil of 1804 it is the most

successful and for this reason it was copied in many countries like Spain, Portugal, Belgium and eastern

countries like Russia, Canada, Quebec, North Africa and Turkey. It remains a cornerstone of Italian

private law. “Preliminary provisions on the law in general”.

Its structure is divided into six books, each governing a distinct area of the civil law:

1.​ Persons (including foundations and organizations)

2.​ Succession upon death

3.​ Property (all real rights based on rights on the things, possession)

4.​ Obligations

5.​ Work (all part of company)

6.​ Protection of rights

SECTORIAL LEGISLATIONS

Over time, sector-specific legislation has supplemented the Code to adapt to modern needs; examples

include:

-​ Consumer Code (private person and entrepreneur relationship is not equal)

-​ Insurance Code, Privacy Code (to guarantee the protection of data, implementing the EU’s

GDPR)

-​ Tourism Code

4.CUSTOMS AND USAGE

Those are unwritten sources of law that you can find in chamber commerce, but just the pattern there is

not an actual law.

They are divided into:

- material/object elements: they are general, repeated and constant patterns of behaviour

- psychological/subjective elements: they are observed as if they are legal duties.

INTERNATIONAL SOURCES

International conventions

Private international law: national source regulating the relationship between national and foreign

sources, there is a list with different countries' laws and on the basis of the situation you apply a law.

European Union Regulations immediately applicable to every European member state

European Union Directives are the cases where the European gives freedom to national system to

change laws

Other sources are e.g. EU Treaty, EU Charter of Fundamental Rights has been used by Italian judges

as a law that can be applied directly to Italian cases, because they are more modern.

THE INTERPRETATION OF STATUES

In the Italian legal system, the interpretation of statutes is traditionally governed by the Preliminary

Provisions of the Civil Code, especially Article 12. According to this rule, interpreters must begin by

examining the literal meaning. When this is not sufficient, interpretation may take a teleological or

logical approach, seeking the purpose of the rule, and a systematic approach, placing the provision

within the broader context of the legal order.

When these methods do not solve the issue and the law presents a gap, analogy becomes relevant.

There are two types of analogy:

-​ Analogia legis allows the application of rules governing similar cases

-​ analogia iuris relies on the general principles of the legal system when no comparable norms

exist.

Analogy is prohibited in criminal law, where the principle of legality requires that offences be expressly

defined and in relation to special or exceptional provisions, such as emergency legislation.

GENERAL PRINCIPLES provide broad and elastic provisions e.g. Good Faith, Public Moral, Public

Order, Fairness. They are linked to the actual context.

RESTRICTIVE or EXTENSIVE interpretation: authentic (the same person that enacted the law gives an

interpretation), juridical (given by judges the most common, judges largely interpret laws),

administrative (rules applied by offices) and doctrinal (the opinions and analyses of legal scholars and

commentators, common in England).

LEGAL FORMANTS

Rodolfo Sacco was a professor in Turin, his revolutionary idea changed the approach of private law,

particularly in legal formats. Sacco and other scholars created the so-called “Trento Theses”, a manifesto

of the aims and methods of comparative law.

The formants are the factors that form a legal system. A legal formant is one of the various elements or

sources that together shape the law as it is actually applied in a given legal system.

Legal formants are:

-​ Legislation: statutes, codes, and written laws enacted by the legislature.

-​ Interpretation of practicing lawyers is interpreted to someone else before.

-​ Judicial decisions are not applied in a mechanical way, but by judges so the same rule applied

in different places may have different outcomes, declared in the so-called massima.

-​ Scholarly writings by professors the so-called dottrina

-​ Other like ideology, religion, declamatory statements

-​ Cryptotypes those are hidden formants e.g. mentality of legal practitioners

These different formants compete to provide a solution. This solution can sometimes be inconsistent with

the theoretical statements. The theory of formants also helps identify which formant is better to govern a

certain area of law.

Some formants can prevail in some fields of law (e.g. judicial decisions in tort law).

SUBJECTIVE RIGHT is the power conferred by the law to a certain subject to freely act, in a certain

domain (property). It is being limited in the cases of public interest and people's interest. Can be

distinguished between:

-​ RELATIVE RIGHTS (toward some subjects, ownership right)

-​ ABSOLUTE RIGHTS (toward every other subject).

They are also divided into:

-​ PATRIMONIAL RIGHTS those who satisfy needs valued in money,with economical value like

property right

-​ PERSONALITY RIGHTS the rights of the individual to control the commercial use of one’s

identity according to one’s moral, for example when someone takes a photo of me in my private

life.

Rights are then:

-​ DISPOSABLE those which can be alienated from the owner and can be refused by a person.

-​ NON-DISPOSABLE those which cannot be transferred from the owner to another person, and

which cannot be alienated, as human rights.

PROPERTY RIGHTS (diritto reale): on tangible things, against anyone.

CREDIT RIGHTS / obligations or Choses in action (from French): against specific obligors.

ABUSE OF A RIGHT created by judges and doctrine in some cases people abuse of their right in legal

action to fulfil the legitimate right would create an unjustified damage to a third party or the general

interest because of circumstances, purposes or result.

RIGHTS, INTERESTS AND LEGAL RELATIONS

Legal relations: are relationships between two or more subjects or relations with things. There exists an

active side and a passive side.

ACTIVE SIDE:

Power and licences: right to modify the legal situation of another subject (withdrawal from contract or

association)

Legal expectation: future prospects or entitlement to unvested rights (they are not guarantee for

example inheritance)

Authority: somebody has the power to act in somebody else interest (child)

Status: set of active and passive legal situations of a subject. The subject’s position inside the social

system.

PASSIVE SIDE (negative):

Duty: prohibition to harm a subjective right of another subject, in cases of absolute rights.

Obligation: prohibition to harm a subjective right of another subject, in cases of relative rights.

Subjection: a person submitted to the power of another subject and also liability (i.e. children subjected

to the authority of parents).

Liability: negative situation of a person who committed an illicit act and must pay for it compensating the

injury caused.

Legitimate interest: active situation of the private subject toward the power of the public administration;

infringement of the law by public administration allows the person involved to have compensation. CASE:

in a public competition, if the person loses and the contest was done regularly nothing happens, but if a

contest was rigged, the person has to make his/her legitimate interest valid.

Collective interests: situation of a certain group of subjects linked together by the same damages.For

example students can collect as a group to ask the prof.

Diffuse interests: belonging to the general community.

LEGAL FACTS AND ACTS

Fact: any event

Act: event caused by man, human actions

Patrimonial acts: has an economical value and non patrimonial acts: not economical

Acts in return for payment: when something is given to someone in return for something and Act free of

charge: nothing in return

Unilateral act: donation nothing in exchange, bilateral acts: when two people are involved, multilateral

acts: more people are involved, collective acts: the will of an entire group is the same, shareholders for

instance.

An act can be valid if they have all the requisite required by the law and elements or invalid if they do

not have all the requisite required by the law or elements. Can also be licit, in agreement with the law or

illicit acts, in contrast with the law

ACQUISITION OF RIGHTS

-​ originating title: title constituted autonomously by the possessor o

-​ derived title: obtained from an existing previous title-holder.

The acquisition of rights can be obtained following the death of the title-holder and can be an universal

title: heirs, you inherit everything the bad and the good or a particular title: (legato) there is a will and

you inert only a certain good is given to a certain person.

Transfer of the rights can be free or compulsory so given under certain conditions like copyright.

Limitation period, statute barred (prescrizione): a right can expire, you possess it only for a limited

time.

LOSING RIGHTS

Art. 2934 c.c. says that when the person entitled to the rights does not exercise them within a period

determined by law, the right is lost. Limitation times are different depending on the case, for example the

limitation time for a contract is 10 years, for irremovable rights is 20 years. The limitation period starts in

the moment in which the subject holder of the right starts not using it.

Suspension of the limitation period, because of relationship between the parties or subjective

conditions of the right holder, for example when you get married if you have a debt is suspended

because it is assumed that you are not going to take legal actions against your husband or wife.

Interruption of the limitation period because of interruptive acts of the right holder or the other party:

time starts running again if one of the parties makes notice of the debt to the other with a certificate or

something else.

Lapse of the right (art. 2964 establishes the inapplicability of prescription rules to decadence).

NATURAL PERSONS

Natural persons are the individuals, human beings that you can see in real life. Instead legal persons are

the collective entities (associations, foundations and companies), they do not exist in reality, they are not

delivered by nature, but created because we need them.

They are all “legal subjects”, even legal persons are all right holders, law gives us duty and right.

Natural persons acquire the legal capacity at the moment of birth (art. 1/I c.c.), the child must be alive

and capable of breathing independently at the moment of birth for a few minutes. An unborn child,

already conceived, can also have some rights (art. 1/II c.c.) (e.g. will).

In our legal system in order to be considered a natural person you have to be born.

CASE: a married woman loses her husband and in his will he had written that all his good will go to their

unborn child so the women must wait until the baby will be concei