Principles of private law

Principles of private law class 1

"Ubi societas, ibi ius"

What does it mean that "where there is society, there is law"? What is the need to which the law responds? The law responds to the need for justice in the human heart, not only when you experience injustice, but also in positive, in justice. The question we must ask ourselves to begin is whether this need (to be treated justly) concerns not only criminal law but also private law.

Private law (daily life law)

Is the law that concerns the relationship not between the citizens and the State, but that regulates the relationship between people/human beings. Until not so many years ago the common man thought that the law served to limit our freedom to allow us to live together in society. This is one of Thomas Hobbes’s ideas expressed in the book called The Leviathan, which concerns the structure of the society and it argues the social contract and rule by an absolute King. But Thomas Hobbes wrote the Leviathan in 1651 and Europe during that period was at war; also the United Kingdom was at war, more precisely he wrote it during the English Civil War, so we can understand that the only solution to face that situation of the State of Nature is the strong, undivided government.

Private law affects all of the men’s life, from the most trivial things to the most important things. Private law serves to exalt the freedom of each of us, because freedom goes hand in hand with satisfaction, with happiness. So, freedom is linked with satisfaction, with happiness and private law is an instrument to be happy, to satisfy our desires, our needs.

To summarize, we can say that private law is not a primary necessity of the State, but it is an instrument, originated before the State, through which humanity attend to respond to the need for justice, starting with the right that every human being has: human rights (or diritti inviolabili). Particularly in private law this need is translated into the need for relation between people to be fair of what is due to each of us. Therefore, the need of law belongs to the person and the State is a servant (The State is the servant - has a secondary purpose, primary purpose is justice).

Law has to do with human life. Private law is a daily life law which regards the life of each of us, as citizens, as human beings, etc.

Art. 2 – Constitution

The Republic recognises and guarantees the rights of human beings, both as an individual and in the social groups where his personality takes place, and requires the fulfilment of the mandatory duties of political, economic and social solidarity. Article 2 talks about human rights and, most importantly, not just as individuals but as social groups where the personality of each of us takes place. But there is also a second part that is not less important: article 2 talks also about mandatory duties, not only towards the State but also towards other individuals. Mandatory duties means that to live together (which is mostly a good thing that a bad thing in general) we need to take in account others.

In other words, rights are part of a universe in which they move like planets or stars: the more there are, the less room there is for each of them, therefore it is easier for them to collide. What would happen if one single company took all the universe? Would the customers be more or less satisfied? There would be no competition, which is a positive thing from the point of view of the owner of the company but at the same time it would be negative from the perspective of the consumers. For this reason there is the so-called Antitrust (anti-monopolio) Law which regulates relationships between companies to ensure that everyone can exercise their right to private economic initiatives.

So, more rights is not always more rights for others, it may be more right for just one person/one company. This is the duties point of view: because for a company it is better to not have competitors from an economic perspective, whereas it is better to have them from the point of view of the products.

The legal system indicates the order of legal nature that a certain State has given itself and continues to give itself, perfecting itself, or trying to do it, according to the criteria that we can find in the Constitution. The system of Italian private law is the Constitution. (41) Every law (diritto) has to respect the Constitution. The Constitution is the source of law that, if we imagine law sources like a pyramid, is at the base of the pyramid in the sense that it is the normative/the law on which the entire system is based and organized.

Law sources (Provisions on the law in general - Art. 1)

Law sources is a system that shows us what can be called "law"/which allows us to define law in our legal system and the Constitution is the source of law at the base of this pyramid, in the sense that it is the normative on which the entire system is based and organized. Law sources show what we have to do as citizens in our private law daily life.

Where do we find the description of law sources, of this pyramid?

We find it in the so-called "Disposizioni sulla legge in generale" (Provisions on the law in general) or in other words "preleggi", which are a series of articles, provisions that apply to all laws, all rules.

Codice civile (Regio Decreto 16 marzo 1942, n. 262)

Disposizioni sulla legge in generale Capo I Delle fonti del diritto Art. 1. Indicazione delle fonti. Sono fonti del diritto:

• Le leggi;
• I regolamenti;
• Le norme corporative; ( ) Le norme corporative sono state abrogate per effetto del R.D.L. 9 agosto 1943, n. 721.
• Gli usi.

But where is the Constitution?

It is not written here and neither are International Agreements, WHY? Our Civil Code came in force in 1942 whereas the Constitution came into force in 1948, so of course there is neither Constitution nor European Regulation, but this is today’s law sources. At the base there are the Constitution and the International Agreements.

The Constitution is divided in three parts (even though we generally speak about 2 parts)

1. Fundamental principles (Art. 1-12)
2. Rights and duties of citizens
3. Order of Republic

In the Constitution there are norms called "principles", that are something different from ordinary laws (because a principle is something like Art. 2). For example Art. 2 is really different from Art. 1218 of the Italian Civil Code: Art. 2 is a principle: it states a principle (it’s general / it is not referred to a specific person) - there is an enunciation. Art. 1218 is an ordinary law: it takes a specific case (when the debtor does not fulfil his obligation) and links the legal effects to this.

Constitution

The Constitution is at the base of this pyramid, therefore the Constitution’s principles must be respected by all the rules of the system otherwise they would be declared unconstitutional by the Constitutional Court, whose aim is to test if law doesn’t face the Constitution. If a Statute, an Administrative Regulation or a Custom is against the principles of the Constitution it would be declared unconstitutional. This rule, in general, the rule that what is over the Constitution cannot be against the Constitution, is called hierarchical principle: the sources that are higher in the pyramid cannot contradict the one that are lower in the pyramid.

International agreements

At the same level of the Constitution there are the International Agreements, which are regulated in Art. 11 of the Constitution itself.

L’Italia ripudia la guerra come strumento di offesa alla libertà degli altri popoli e come mezzo di risoluzione delle controversie internazionali; consente, in condizioni di parità con gli altri Stati, alle limitazioni di sovranità necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni; promuove e favorisce le organizzazioni internazionali rivolte a tale scopo. International agreements are normally about economic issues and sometimes human rights. The most important of this sovereign limitation are the EU Agreements.

Statutes

Statutes are what we call "leggi" and are the outcome of the processes laid down by the Constitution that consist in:

• Approval by the two Houses of Parliament (Chamber of Deputies e Senate of the Republic)
• Promulgation by the President of the Republic
• Publication in the official journal
• Vacatio legis: statutes come in force 15 days after the publication

The Italian Civil Code is just one law: an article is not a law (you can find articles IN a law). So, the Italian Civil Code is just one statute, which came into force in 1942. What is a statute? Which are the steps that are necessary for a statute to come in force? What are law sources? Which is the relationship between rights and mandatory duties in the 2nd article of the Constitution?

EU regulations

EU Regulations are normatives that are promulgated by the European Union and are directly applicable in our legal system. There are also directives (direttive) but they must be transposed in our legal system - directives don't have a direct effect in our legal system, it is necessary a statute that gives them effect in our legal system (but directives are not law sources). Regulations have a direct / immediate effect in our legal system. Directives will have a direct effect after becoming statutes.

Administrative regulations

Are such as the so-called DPCM, which are secondary rules and are usually prerogatives of the Government or the authorities, not the Parliament and sometimes the Prime Minister. They are substantially binding for the matters they deal with, but they cannot be against statutes and EU regulation and most importantly against the Constitution and International Agreements. Law decrees (belonging to the Government) have effect just for 60 days; after that time the Parliament has to approve them, without provocation they lose their effect. A legislative decree (belonging to the Parliament) is an act of the Parliament that permits the government to make / to approve statutes.

Customs

At the top of the pyramid there are Customs, which, according to Art. 8 of Preleggi are:

• Only effective if they they are referred to in a legislation (the legislation has to recall the custom)
• Held over a long period of time by a large number of people in a specific territorial space
• The Custom has to be perceived as dutiful (obbligatorio) or mandatory by its people

If there are these requirements and the Custom is referred to in a legislation, then the Custom is a law source.

Class 2

Time and law

Private law’s purpose is to satisfy our needs, of course taking into consideration the fact that we are not alone. Private law is a practical/concrete/daily life science and one the most relevant dimensions that characterise our daily life is time, and also law is related with time. There is a strong link between time and law.

Statute and time

• Coming into force (Art. 10 preleggi): approvation + promulgatio + vacatio legis. Once these conditions are met the statute comes into force and is binding (vincolante) even for the ones who do not know the statute. It is functional to be sure that everyone is in the best condition to be aware of the new law.
• Repeal - abrogazione - (Art. 15 preleggi): A statute can lose its effectiveness and this is called repeal. Repeal is totally different from the declaration of constitutional illegitimacy. Repeal is a situation when a statute doesn’t noteffect anymore, not because it is against the Constitution/International Agreements/etc, but just because there is a new statute. The repeal can take place in 2 ways:
  • Other statute
    • When a new statute expressly repeals the old one
    • When a new statute does not say that the old one is repealed, but there is a contradiction between the contents (the new one has a content that is against the old one) → the new one always prevails on the old statute
    • The new statute is dedicated / regulates the entire issue (before there were different statutes for the same issue)
  • Abrogative referendum of referendum repeal: it is regulated in Art. 75 of the Constitution
    • 500,000 signatures from citizens
    • Check of the signatures from the Court of Cassation
    • Turns out that 50%+1 (quorum) of the ones who can vote go to the voting. If there is not this condition the referendum is not valid, no matter what the voters have decided.
• Irretroactive effects (Art. 11 preleggi): the statute does not normally have retroactive effects, it applies only for the future → mandatory from the day it comes into force is (the statute cannot regard past situations); it is mandatory in particular for criminal law
• Succession in time: transitional rules/established law or accomplished fact. So, when there is transitional law we have the clear answer about which is the law applicable to our case, but sometimes there is no transitional law.

Different statutes may apply to a given case over time, not just for a single moment but for a long period of time. In this case, when the legal effects have not occurred yet it depends on several factors whether the applicable statute is the statute in force at the time when the fact occurred. In the case we don’t have anything inside the statute we have two theories:

• Established law: for those who have applied under the whole statute regime, the statute that is applied is the original one (diritto quesito). Costituiscono una categoria di diritti o situazioni soggettive che sono divenuti immutabili con il decorso del tempo: non sono toccati da eventuali modificazioni legislative. Un esempio di diritto quesito è quello del lavoratore alla retribuzione per prestazioni già effettuate.
• Accomplished fact: even if the company applies when the statute in force is the original one, the statute that is applied is the new one (because there has been a change of statute when the effects of the statute were not finished yet)

Subjective rights

The second point concerns the relationship between time and law in the sense of the possibility of time affecting subjective rights. Subjective rights can be defined as the power of satisfying one’s own individual interest that is protected by the legal system (such as being able to enjoy assets=property or exercising the right to credit=having a coffee at the bar). But, if relationships between private individuals have to be characterized by justice we cannot ignore the passage of time and the law takes into consideration this issue.

• Limitation: the loss of the subjective right due to the inertia of its holder over a certain period of time (none of us would think about claiming a coffee that he bought 20 years ago - I don’t use my credit for 20 years) Limitation - there are two conditions:
  • Inertia
  • Passage of time

Limitation is a rule dedicated to the link between subjective right and time and it is about losing your subjective right after not using it for a certain period of time that can be:

• Ordinary: 10 years is the regular period of time by which you have to use your subjective right, otherwise you lose it
• Short: 5 years for the payment of interests due to the termination of the contract
• Long: 20 years is the time necessary to lose the property of an asset due to the adverse possession by a person who has acted as the owner

Suspension: a period of time that is not calculated regarding the term of limitation (we have a period of time that is not calculated). Maybe there is 1 year of limitation and after that there is a situation that justifies suspension → the term comes back not just to 0, but to 1 (so if the limitation is ordinary term, we have other 9 years, not 10)

There is suspension when the time of limitation is not calculated (e.g. we have a term of 10 years limitation, may be a subject enjoys his right today, so from today the 10 years starts. After 1 year happens a situation that justifies suspension → when the situation that justifies suspension is over/finished you have to come back to limitation, but you do not have to calculate this time because there is suspension and you have to restart from 1, not to 0)

Interruption: when we have a situation that interrupts limitation → use of the right. In this case the time comes back to 0 because we have an interruption The need of limitation is the certainty of legal relationships (if you show for a certain period of time a disinterest for subjective rights it corresponds to justice that you are no longer the holder of that right → ratio of adverse possession).

Adverse possession: the acquisition of the subjective right due to the use of it as holder over a certain period of time (20 years for the loss of property due to the adverse possession by a person who has acted as the owner). To lose your property is necessary that another person uses your asset

Forfeiture (decadenza): the loss of the subjective right after a certain period of time Forfeiture is a term within you have to exercise your subjective right (not using it’s not relevant) There is just one condition: the passage of time The purpose of limitation is to adapt the law to reality, whereas the purpose of forfeiture is to eliminate the uncertainty (an uncertain state) of a situation.

Class 3

Interpretation (art. 12 D.L.G.)

ICASE IN POINT ≠ HYPOTHETICAL FACT Historical Vs. Law in Action Sectoral Vs. Systematic Literal Vs. Teleological An ordinary law is different from a principle. In the principle we have the directive of behavior (direttiva di comportamento), in general regarding the State; in the principle we have a single occurrence which is followed by specific consequences (Art. 1218). In this case there is a typical structure of the rule: if A then B and this is called juridical syllogism. But we have said that private law is linked with practical life, so we have to deal with one of the most difficult issue of private law: CASE IN POINT (fattispecie concreta) that does not always match the HYPOTHETICAL SITUATION PROVIDED BY THE LAW (fattispecie astratta).