Principles of Private law

Lesson I - Course aim

Without law, economics doesn’t work. Ubi societas, ibi ius = where there is society there is law. Law responds to the need of justice:

• Need to be treated right;
• Does it involve only criminal law or does it concern private law? Private law is a law that regulates relationships between people.

Law = social contract.

In the 17th century, during the period of war (English civil war; Europe was in a state of chaos), Thomas Hobbes wrote the Leviathan, discussing the structure of society and the state in which the law controls and limits us. Nowadays, private law is an instrument that originated before the State to fulfill our need for justice. The state of nature according to Hobbes = the man is created by the State, but now it’s seen as a false notion because the state is created by man.

Private law rules our day-to-day life and helps us to be happy; it enables us to satisfy our desires and needs. It was born before the State, it gives us human rights (diritti inviolabili). In general, it responds to the need for justice and is important in every life: from the coffee every morning to getting married or even building a company. Private law is the law that regulates the relationship between individuals.

Tort: Fatto illecito, responsabilità civile.

Private law exalts the freedom of individuals because freedom is linked with happiness, and private law is an instrument to reach happiness. Private law is also an instrument to satisfy our needs and is based on contract; otherwise, we couldn’t get a car. Private law is not the primary necessity of the State but originated before the State, which humanity has used it before. (Human rights are bigger than diritti inviolabili.) Therefore, the needs of law belong to a person and the state serves humans, so it is a human’s function. Law has to do with human life and private law has to do with the daily life of a human.

ART 2 (1948)

“The Republic recognizes and guarantees the rights of human being, both as an individual and in the social groups where his personality takes place, and requires the fulfillment of the mandatory duties of political, economic, and social solidarity.”

Metaphor Stars:

• Universe: Markets
• Stars: Firms

If there is just one star in the universe, there is monopoly, but more than one star creates oligopoly, so more competition. Too many stars will collapse, creating chaos between firms, so to regulate this chaos we need: LAW.

Anti-trust law regulates rights between companies so it permits them to be competitors for the others.

This article talks about human and mandatory duties (doveri da rispettare e che se non lo faccio ci sono delle conseguenze), but it’s not always towards the State but also towards the people. Ex: Think about the market; if there is just one company, for the customer it is not good because he hasn’t any choice, but for the entrepreneur, it is quite good for the money, but there is no competition.

Legal System: It is inside the constitution, and every law has to respect the constitution, which is the source of law. The constitution is the base of the law organization. Our civil code is from 1942 (created by the Riforma Costituente) and our constitution is from 1948, so this is the reason why there are not the words constitution, EU, and international agreements in our constitution.

Art 2 is different from Art.1218 because, in the second case, we have a specific event and it has legal effects for this. Art. 1218: “Il debitore che non esegue esattamente la prestazione dovuta è tenuto al risarcimento del danno (effetto), se non prova che l'inadempimento o il ritardo è stato determinato da impossibilità della prestazione derivante da causa a lui non imputabile.”

The constitution principle is at the base of the pyramid, meaning that constitutional principles must be respected by all the rules of the system; otherwise, they will be declared unconstitutional by the constitutional code. The constitutional code aims to verify if the law is constitutional. If the rules, customs, and regulations are against principles of the constitution, they will be declared unconstitutional. EX. If a State established that for Inter football club fans, there are more taxes, it is unconstitutional because it is discrimination.

Italian Constitution

• Fundamental principles from 1 to 12
• Rights and duties
• Order (ordinamento) of the Republic

The first 12 articles are called fundamental principles, while the others are just principles (127). Instead, in the civil code, we have articles that explain what happens if you don’t follow the rules.

Hierarchical Principles:

• Constitution is at the base of the pyramid with the international agreements (quoted for the first time in the article 11) and what came after on the pyramid must not be refused by the Constitution itself.
• Customs (cannot exist without the previous one)
• Admin. Regulation (cannot exist without the previous one)
• Statutes and EU Regulation (cannot exist without the previous one)
• Constitution - Int. Agreements (most important part)

Statutes is like “legge” in Italian and it consists of 4 passages:

1. Approval by the two chambers: deputies and senate.
2. Promulgation by the president of the Republic.
3. The publication of the official journal (gazzetta di stato).
4. VACATIO LEGIS (the period between the publication of the law and the taking effect).

Some DPCM take place in act directly after the publication on the official journal, without waiting the 15 days of Vacatio Legis.

EU Regulation (2016) A regulation is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously. The EU regulation, to be accepted in our country, must not be refused by the constitution.

Three conditions of customs (usi):

• The customs are referred to in the civile code (art.1181).
• They have to be used for a long time by a good amount of people in a specific place.
• The customs have to be perceived as dutiful/mandatory. If there is not one of these three conditions, there is not a source of law.

Entra in vigore = become effective

Exam questions

1. What are law sources? They show what a law is. They are all the facts and acts that we have to do as citizens in our daily life. What is law for our system? The rules that we have to respect in our daily life.
2. What is a statute? In Italy, it is law and it consists of 4 passages.
3. What is the difference between mandatory duties and rights? The difference is that the first one is doveri, therefore the citizen must do them to stay in the society created by the State. The rights are what the people under the State are free to do; we may say that, therefore, the first one is about what a citizen must do and the second about what a citizen can do.
4. What is the difference between the regulation and the directives? Regulation has an immediate effect in our legal system, but the directives don’t impact directly on our legal system.
5. Which is the difference between international agreements and EU regulation? Int. Agreements are as important as the constitution inside the pyramid, while EU Regulation is on the second level of the hierarchy and, therefore, it’s dependent on Int. Agreements. The difference is about the arguments: I.A. is a relationship between states (European Union, France, Spain, Italy), the other is about the statutes, so it has an immediate effect in our regulation.

Lesson II

Private law is a concrete science. There is a strong link between time and law.

Statutes:

1. When the statute actually comes into force (I 4 punti della prima lezione). We have to know the statute, so the 15 days before it takes place should be enough to let everyone be aware of the new law.
2. A statute may lose its value, and it’s called repeal (abrogazione). The statute doesn't apply anymore just because, usually, there is a new statute that replaces it. It could be another statute or an abrogative referendum.

First case; other statutes:

1. A new statute replaces the old one.
2. If the new statute has something against the old one or has a different content, in any case, the new statute prevails.
3. The new statute may contain and manage a lot of the older ones. Ex. Consumer law: before there were a lot of statutes, now there is only one.

Second case; abrogative referendum: four steps =>

1. We need at least 500,000 signatures to present the referendum to the court.
2. Then, the Court of Cassation has to control all the signatures to verify the validity of those signatures.
3. The referendum will be valid only if 50%+1 (quorum) of all the people who can vote go to vote (if there aren’t those people, the referendum won’t be applied).
4. After we have checked that we have enough people voting, we need to see what they have voted for. If the 50%+1 of those people vote to REPEAL the referendum will be valid. If not, it’s not valid.

Irretro-active effects: It’s mandatory just for criminal law. The person who committed a crime has to pay as the law of that time said.

Succession in time:

Transitional rules: a law that helps you to manage to stay inside the law. The best possibility, the statutes imply that you can be helped. Ex. Taxes for 2 years that become just 1.

Theory of Established law: (diritto quesito). We can follow the old statute till the end of it (I paid for 2 years, now even if there is the statute for one year, I can pay for 2).

Theory of Accomplished fact: even if my company applies today for the rule of the taxation from 2 years to 1 year. The company has, in any case, to pay in 1 year because the state doesn't provide it. There are two theories; there isn’t always the same answer.

Lesson III

Second point about the relationship between time and law.

Subjective right (diritto soggettivo): the power to satisfy one’s own individual interest which is protected by the legal system. Ex. Being able to enjoy a property, I’m the owner of it; property is a subjective right. Also, credit is a subjective right.

If relations between private individuals are to be characterized by justice, we cannot ignore the passage of time, and the law takes into consideration this issue indeed.

Ex: coffee; no one of us could think of claiming the coffee, bought 20 years ago, just by showing the fine.

Limitation of time: If I have a fine taken 20 years ago, maybe it’s no longer valid now. This process is called Limitation: The loss of the subjective right due to the inertia of its holder over a certain period of time (ordinary, short, or long). Limitation is a rule dedicated to subjective rights in relation to time. When I can satisfy a personal need and I achieve it, protected by the law I have subjective rights. After a period of time, if I don’t use my right, I may lose it.

We have two conditions in order to achieve it:

• Inertia, haven’t used the right
• The passage of time

Normally, in general, the statute of limitation is 10 years (ordinary term); after 10 years that I don’t use my right, I should lose it. But we have other shorter terms (5 years for payment of interest and invests due for determination of employment; an employer would lose his payment in 5 years instead of 10 years if they don’t request their interests due to the termination of the contract) or longer terms (20 years, the time needed to lose a property). Property can be transmitted by a person to another after 20 years if the second person uses this property as he is the real owner and if manages to show that I haven’t used my property in 20 years while the second person used it. (uso capione) It means that the original owner doesn’t care at all about the property, he doesn’t even pay taxes on it.

In general, we can say that the need for limitation is the certainty of legal relationships; in other words, if for a period of time you show such disinterest for your subjective right, it corresponds to justice that you’re no longer the holder of that right, and this is the ratio of adverse possession.

Adverse Possession: rule related to the fact of the use of someone else then to the real owner of a particular good (those can be objects, buildings, and shares). The acquisition of the subjective right due to the use of it as holder over a certain period of time.

• There is an interruption of limitation or of adverse possession when the real owner comes back, so we say that there is a use of subjective right.
• Also, the suspension is important because it’s a period of time, due to a particular condition of the law, that is not calculated.

Ex. There is a year of limitation, then a suspension where nothing happens in a determined period of time, then again the limitation takes place and it starts from 1 year, so it doesn’t start all over again but from when the suspension has occurred.

It’s different from a normal robbery because of the period of time. Adverse possession it’s a transition of property due to a big period of time. A house that hasn’t been used in 20 years would be very damaged if there isn’t a person using it. The owner doesn’t care about the property, while the second person does care, he cleans the property and does everything in order, as if he was the real owner.

If they have the possession right, there is a shorter period of time before the acquisition; if they don’t have it, the period is longer. If there are no other people asking for the property in 20 years, then it’s yours. There is some taxation to pay:

• Tari (tassa sui rifiuti) is a taxation related to who is using the house; there are other taxes related to the owner not linked to the real user of the house; it depends on the case.
• IMU is for the one who owns it.

Forfeiture: the loss of the subjective right after a certain period of time. We have just one condition:

• The period of time

If I go to a shop and buy something that has a problem, I can return it in 8 days (maybe, just an example), after this period of time I can’t return the item, no matter if I used it or not. This happens even if I want to change it for another.

Which is the difference between limitation and forfeiture? The difference between limitation and forfeiture is that in the first one we have 2 conditions, in the other just 1 (not using is irrelevant it matters just and only the period of time). The purposes of the two, therefore, are different. The purpose of limitation is the certainty of law (certezza di diritto): it’s necessary that we know who the owner of an asset/good is; needed in limitation, because we have to know who the real owner is. It’s to adapt the law to reality. The idea of limitation is for reality to be closer to the law: who is in reality the owner of the subjective right? Who used it for 20 years?

The purpose of forfeiture is to eliminate the uncertain state of a situation (to create and maintain certainty of law).

Ex. Shop: it is important to know if something sold will or won’t come back

Ex. Regarding business/company: can a company work if it’s not clear who the shareholders are? No; when a shareholder changes the object of the company and a shareholder does not agree with this, in this case, he has the right to withdraw (recedere) from the company, but he must exercise his subjective right within 15 days from the resolution of the shareholders. The shareholder has 15 days to decide if he wants to stay in the company or not; after 15 days, if he doesn’t exercise his right to withdraw, he is stealing definitely the company.

Ordinary law is different from a principle. The second is more general, while the first one is in a specific way. Ex. Art 1218, where there is the link between an effect to another effect. When the debtor doesn’t pay its obligation, it will be sanctioned, so this article advises that if you don’t pay fast enough, you will later pay more with damages. This article is compared with Art. 2. The articles explain a concept, they are more general. Art. 2 says that the Republic protects the human rights of the people, while the articles of the civil code don’t announce anything, but they explain a particular case (like the “cause-effect” law).

Direttiva di comportamento = directive of behavior (Fattispecie concreta) = case in point doesn’t always match hypothetical fact (Fattispecie astratta) situation provided by the law.

Usually, there is not a perfect correspondence between case facts that are linked to reality and hypothetical facts. In art. 1218 (it is quite general), there is a hypothetical fact, the debtor who doesn’t fulfill his obligation; but why doesn’t the person fulfill the obligations? And it can be that he doesn’t fulfill his obligation totally or partially? Maybe he doesn’t fulfill his obligation due to the creditor's responsibility. If I’m a debtor and I don’t fulfill my obligation because of the illegal actions of my creditors; In this case, I don’t fulfill my obligation, but the problem is of the creditor, not mine. We have to know it to apply a fair judgment. There is no correspondence between the hypothetical fact and the reality itself. In the articles, there are a lot of hypothetical facts, but reality is often disappointing: maybe he doesn’t pay, but there are other facts that complicate the situation, that’s why we need judges.

We cannot read the rule and say what to do in reality because we have a general/an abstract rule. We need to apply law: we have to compare the hypostatical situation in the statute/in the article general law with each specific real case (case in point). Things are not that easy; reality is more complicated than the hypostatical situation, it’s difficult for a situation to be like the case in a particular law. In those cases, there must be/ it’s necessary that a “super partes” (authority) resolves our disputes, who has to decide who has to pay; this is why we have judges (the court), that case after case, judgment after judgment, have created a Case Law System, where there is the list of every single p...