Principles of Private Law

CREDITS

→ one has the subjective right to claim the performance of a certain action

cardinal component of the basic relation of private law (=obligation)

obligation (vinculum juris)→ legal relation between 2 subjects (creditor +

debtor)

creditor has the subjective right to claim a performance from the debtor that

can have 3 contents:

1. dare → transfer of a good

2. facere → performance of a service

3. non facere → refraining from a certain act

→ in contracts, parties establish their legal arrangements over specific things

by building specific (reciprocal) obligations

2 main sources of obligations (as well as others):

1. contracts (legal acts/legal transaction)

2. torts/civil responsibilities

actions on contract (ex contractu) and actions in tort (ex delicto) are

considered relative → valid only as regards the parties involved

3. Patrimonial/Non-patrimonial

patrimonial rights → have an economic content (ex. ownership)

non-patrimonial rights → do not have an economic content, normally related

to identity, moral integrity, dignity, etc. (ex. right to privacy)

Whereas patrimonial rights are normally disposable (and can therefore

be waived), non-patrimonial rights are usually non-disposable, as they

terminate with the rightholder’s death

Principles of Private Law - notes by Giulia Somera 14

Legal relations and Legal positions

→ as seen before, each legal relationship is composed of correlative legal

positions: each party may be in a position of “do/may do” or “not do”, and of

“shall/must do” or “not do”

“may do” → freedom (privilege/liberty): allows a certain person to do (or not

to do) something,

can be vested in someone else, through a license

freedoms do not directly entail any right/power (= possibility to bring a

claim)

ex. freedom of speech does not also confere the power to seek

enforcement → people can freely speak, but others can also to their

utmost to interfere with someone else’s voicing. (yet, without physically

assaulting the speaker, as the latter is covered by their right not to be

physically assaulted)

→ however, generally freedoms can be reduced to rights (the exercise of

freedoms - and not the freedoms themselves - are in fact normally

protected by rights)

“can do” → power: allows a certain person/group of specific persons to effect

changes in legal relations (= expand/reduce their/others’ entitlements)

the entitlement susceptible to changes may be held by the powerholder or

by someone else (=this person is said to “bear a liability”)

powers can be vested in someone else, through authorization

powers are to be exercised according to the general principle of good faith

if not legitimate, powers are considered abuse of power (=abusive

imposition by the power holder)

immunity → legal position negating a liability (=protects from the

exposition to the exercise of power)

Principles of Private Law - notes by Giulia Somera 15

Relationship between rights and time

Most rights don’t last forever:

the longer it passes, the higher the difficulty to assess whether one actually

has the right to something

if the debtor doesn’t see the creditor enforcing their rights, it’s kind of

assumed that everything has already been settled

→ institution stating which after some time most rights expire:

civil law common law

prescription statutes of limitation

→ legislator enacted one

→ general institution, with single statute for each right,

general and dogmatic establishing limitations for

regulations each one

→ not every right undergoes prescription

non-disposable rights → it would be a contradiction if the legal system

contemporarily told subjects they cannot waive a right (as they’re non-

disposable) and that after a certain amount of time they have to waive it

(prescription)

property rights → even if we don’t dispose of that right, it doesn’t expire

after a long time (intellectual property is specifically regulated)

→ there’s the possibility of losing right to property for non-use, but only in a

very specific circumstance (acquisitive prescription = uso capione)

The formal waiver of a right or/and prescription have a formal effect →

extinction of that right

→ there also are other institutions providing for this type of time constraint

statutes of repose → extinguish a right for its prolonged non-use, whether or

not an issue of enforcement has arisen in the meanwhile (apply both to claims

Principles of Private Law - notes by Giulia Somera 16

and power-rights)

ex. under EU law, a consumer can withdraw from a distance/off-premises

contract only within a period of 14 days

non-claim statutes (normally paired with statutes of repose) → limitations on

the possibility to bring a claim to court, putting a time barrier to potential

litigation

Legal subjectivity

For a right to work within a legal system, it needs to be held by someone

Legal subjectivity is the result of institutional policies and choices →

→ legal subject: entity able to hold right, enjoying legal capacity (= ability to be

vested with rights and duties)

In contemporary private law, there are 2 types of legal subjects:

1. human beings → natural persons

2. legal entities (”organizations”) → legal subjects

Recognition of legal subjectivity

it’s not an assumed/intrinsic element, but needs to be assessed according to

the legal system’s provisions

the threshold defining legal capacity is important to distinguish between legal

subjects and entities subjected to property

the threshold is in continuous shift

slavery, in the past, was based on the idea that some people did not enjoy

legal subjectivity at all (→ slaves were subjected to property)

with the historical and economic changes which took place, companies

can also have legal subjectivity now (to promote today’s economy)

animals are addressees fo some kind of rights, but are still treated as

objects

→ BGB, section 90, par. A:

Principles of Private Law - notes by Giulia Somera 17

“Animals are not things. They are protected by special statutes. The

provisions that apply to things are to be applied accordingly to animals,

unless otherwise provided”

other emerging subjects are robots, AI, other autonomous systems, or

natural entities (to better protect them from climate change)

Main civil codes:

BGB (Germany)

Code Civil (France)

Codigo Civil (Spain)

ABGB (Austria)

→ the importance is due mainly to the economic/political power of the

country + its historical prestige

Natural persons

When is legal subjectivity acquired? This has several implications

→ at the moment, people acquire legal subjectivity at birth just by the virtue of

being human

ex. if we gave legal subjectivity - which implies habeas corpus - to embryos,

abortion would become murder.

There are some exceptional rights passed on even when one is still a fetus

(heirship, of which the fetus will be able to dispose of only upon his birth)

Capacity to act

→ ability to dispose of one’s rights and to enter validly into legal transactions

age threshold (normally present)

changes for every country

determines when an individual acquires full capacity to act

Principles of Private Law - notes by Giulia Somera 18

within Western constitutions, it’s normally not allowed to withdraw legal

capacity from anyone, as it’s humanly undignifying

→ exceptions allowing for partial/total withdrawal, in cases when the person is

considered not able to take care of themselves:

1. previous assessment from the authorities

2. establishment of someone acting on their behalf (third party vested with

legal agency) Common Law Civil Law

legal capacity on one’s behalf conservatorship legal agency

=

third party = conservators legal representative

→ the assessment of capacity/incapacity to act is to be meticolously assessed

to avoid abuses (some countries adopt a “middle ground”, assessing only a

partial incapacity to act), in line with the UN Conventions on the Rights of

Persons with Disabilities

In the US, they’re very careful when establishing conservatorships,

because of the risk of abuses

ex. Britney Spears

MINORS

generally incapacitated to act, but they’re not actually incapable of doing anything

→ according to the law, minors should be capable of acting with respect to acts

consistent with their age and the money they’re given thereof (limited contractual

capacity), upon the meeting of certain requirements (x, reaching of certain ages)

ex. when 17, a minor can agree to buying an Iphone, but not a house (the contract

of sale would be void in this last case)

→ civil codes:

section 108, par. 1 (BGB)

Principles of Private Law - notes by Giulia Somera 19

“Entry into a contract without consent”

If the minor enters into a contract without the necessary consent of the legal

representative, the effectiveness of the contract is subject to approval by the

legal representative

art. 1147 (Code Civil)

The lack of capacity to act is a ground for relative nullity

art. 1425, par. 1 (Codice Civile)

Il contratto è annullabile se una delle parti era legalmente incapace di

contrarre

England:

contracts entered into by minors are invalid if concerning

land

subscription in shares for companies

partnerships

marriage settlements

labour → special contractual capacity (the contract must be wholly

beneficial to the minor themself)

To better regulate each field, law creates different categories of legal

subjects

ex. when it comes to contracts of sale, certain subjects are at times

objectively weaker than the other party → in EU law, there’s the category

of consumers which is normally safeguarded, as the weaker party

compared to the business offering the product/service

Legal entities

→ organizations with legal subjectivity, which can be constituted under public or

private law

Principles of Private Law - notes by Giulia Somera 20

ex. Municipality of Turin: enjoys legal subjectivity, but constituted under public law

legal entities constituted under public law can act under private law, too

Creation of organizations (under private law)

→ through 2 main documents:

1. articles of associations → constituent documents, establish the legal

subjectivity + determine the goals the organization is meant to pursue

2. bylaws → describe the governance + structure

Main taxonomies

→ based on 2 main principles:

1. whether the organization share the revenue with the shareholders

for-profit →