Riassunto esame Private law, Prof. Reali Alessio, libro consigliato Lecture on Italian Private Law , Reali

PRIVATE LAW

LECTURE 1: ON LAW AND LEGAL SYSTEM

1.1 BRIEF INTRODUCTION TO THE CONCEPT OF LAW

Law: practical science

-​ Why is law important? It provides order to organize the coexistence of human beings.

-​ How does law work? Through rules that a specific class of people decides to adopt

so as to organize their coexistence and their activities as individuals.

1.2 ON ITALIAN PUBLIC AND PRIVATE LAW

The Italian legal system is divided into two major areas of law: public and private law

PUBLIC LAW: branch of law that regulates how the State uses its public powers and how it

interacts with citizens from a position of authority.

Public law deals with:

-​ organization of the Italian state: territorial public bodies (regioni, province, comuni)

and other public bodies.

(public bodies: legal entities whose purpose is to fulfil collective interests, they have

power of supremacy: authority that public institutions or governmental bodies have to act

they are subjected to permanent controls and to the

above private individuals,

directions of the State or superior public bodies)

-​ relationships between these public bodies

-​ relationships between public entities and private persons, when the relationships

reveal the supremacy of the public entity of the case over the private person.

( )

example: relationship between tax authority and tax payer

PRIVATE LAW: branch of law that governs relationships between private individuals or

entities.

Public law deals with:

-​ regulation of mutual relationships between private individuals, on a personal basis,

on a familiar basis and on a patrimonial basis.

(examples: obligations, contracts, liability for torts, ownership and other rights over things,

commercial relationships, succession on personal legal positions)

-​ organization and activity of the so-called persone giuridiche: legal persons, such as

companies or corporations, associations, foundations and other private-law entities

-​ relationships between public entities and private persons, when a relationship of

supremacy is not involved

example: public entity that creates an unjustified harm to a private individual, through the

activity of one of its legal representatives, outside the exercise of its powers, must pay

damages

Public entities sometimes move themselves inside private law

example: acquisition of a piece of land performed by a public entity can happen in 2 ways:

⤷ expropriation: if there is a public interest (building a road), the public authority can take the

land from the owner, who gets compensation (indennizzo), but not the full market price. →

public law

⤷ sale-purchase contract: public authority can also buy the land normally, just like any private

person, by signing a contract of sale → private law

Distinction between public and private law:

-​ relationship is based on supremacy (the public authority gives orders and uses its

authoritative power) → public law applies.

-​ relationship is based on equality between the parties → private law applies

Many rules of public law tend to coordinate public and private interests and to mitigate them

when they are in conflict. So, individuals can sometimes perform claims before the

administrative courts

certain private-law activities (such as, for example, those performed by major companies)

acquire such dimensions that they do necessarily involve public interests.

1.3 CONCEPTS OF RIGHTS, IUS, ORGANIZED COMMUNITY, LEGAL SYSTEM AND

STATE

Rights:

-​ Law: rule made by a government or authority that tells people what they can or

cannot do. (objective point of view)

-​ Right: something a person is allowed to do or have, like freedom, property, or

protection. (subjective point of view)

In italian law and right are translated with the word diritto:

Etymology of diritto:

Ius: latin word meaning the concept of diritto

comes from the word Iussum: what has been orderedù

Latin motto which explains the role of law:

Ubi societas, ibi ius: where there is a society, there is law.

Organized community:

a group of people who live or work together following shared rules.

For it to be legally relevant, it must include:

-​ Non-casual coordination: members are coordinated in a stable way, and their

behaviour is guided by rules of conduct.

-​ Structured rules: these rules are established and applied in an organized and

permanent way by persons appointed to do so.

-​ Effective rules: the rules must be actually observed (principle of effectiveness)

examples: political parties, cultural organizations, associations, foundations,

companies/partnerships, unions, churches, et cetera.

Legal system:

set of rules that organize and regulate people’s behaviour to maintain order in society. It is

always subject to evolution.

Political society:

highest form of organized community, created to provide the conditions for its members to

achieve their interests in an orderly and peaceful way.

Main objectives:

-​ Prevent the use of force among members, using rules, laws, and penalties.

-​ Protect the community from external dangers, such as military threats, environmental

risks, or health crises.

-​ Promote the development and welfare of the community, including:

- More culture available for the masses

- Guarantee of full development for individuals, equality, and a free and dignified

existence.

- Stability of work, decent and affordable housing, proper education, actual health

protection, and greater care for the environment.

Types of political societies have been quite different during history: the nomadic tribes, the

imperial polis, the feudal system, the signorias,the State).

State:

community of individuals spread on a territory that is supposed to be sovereign on its soil

and organized under a specific legal system.

Requirements to speak about some lands as a state:

-​ lands

-​ people, population

-​ government/legal system

-​ organized community which does not recognise a superior authorities

Supranational political societies:

communities of states that share rules and powers above the national level.

Example: European Union

Laws of european union

2 kinds of law or way to create law:

-​ Directive: rules of law created by EU parliament, which when enactive are not enforced in

every state, it is up to the single state to choose to enforce them or not.

-​ Regulations: rules of Law enacted by EU parliament that are enforced in all member states.

Articles 10 and 11 of the Italian Constitution allow Italy to participate in such societies by

recognizing international law and promoting cooperation for peace.

Article 10, paragraph 1, Italian Constitution:

“[I]. The Italian legal system complies with generally-recognized provisions of international law”.

International law and agreements with other countries can influence Italy’s legal system.​

Article 11 Italian Constitution:

“[I]. Italy repudiates war as an instrument of offense to freedom of other peoples and as a means of

resolution of international disputes; it allows, on equal terms with other States, to the limitations of

liability due to set up an order that ensures peace and justice amongst Nations; it promotes and

favours international organizations aimed at this purpose”.

Allows Italy to limit some national sovereignty to promote peace and cooperation with other

countries.​

1.4 ON ORDERS, NORME GIURIDICHE, POSITIVE AND NATURAL LAW, AND

PRECETTO AND FACTI SPECIES OF A NORMA GIURIDICA

Order:

act of command

It can refer to:

-​ general rules: legal rules or rules of law. (ordered directly to a community)

-​ single fact regulation: judgment of a judge. (ordered directly to a single party or

person)

Law:

the term law is used to define:

-​ in a broad sense, any official written act with force of law that creates legal rules.

-​ in a strict sense, a specific legal act that is higher than regulations, contracts, and

other legal acts.

Distinction between positive law and natural law:

-​ Positive law: law enforced in that legal system in that moment

-​ Natural law: set of universal principles that inspire and allow us to evaluate positive

laws. source of all positive laws. In a situation where the law is missing, human

beings rely on these universal principles to avoid arbitrariness.

Rules of law or norme giuridiche:

General rules, which are relevant in the field of law, of an organized legal community.

Characteristic:

-​ authoritative: because they come from an official source of law and must be followed

by everyone in the community.

-​ relative: rule of law it’s a rule of law in one legal system but it’s not necessarily a rule

of law in another legal system.

Distinction between Legal and Moral rules:

Legal rules Moral rules

heteronomous: you are obliged to follow absolute and autonomous: you follow that

them because an authority enforces that on because you feel it, no law that is saying

you. They are related to a legal system. that, nobody enforce a moral rule against

you. Compliance is voluntary.

Rules both moral and legal:

Article 147ICC, Duties towards children (in marriage)

“[I]. Marriage imposes on both spouses the obligation to maintain, instruct, educate and morally assist

children, in accordance with their abilities, natural inclinations and aspirations, under what is provided

for in article 315-bis”.

Both parents must care for, support, educate, and guide their children according to the

children’s abilities and needs.

Distinction between text and precetto of the rules of law:

-​ text : the written form of a legal rule (ex: article 10 “...”)

-​ precetto : the text subjected of interpretation of who is reading, the meaning that

comes out from its interpretation

Some rules of law are clear (example: do not kill), others are subjected of an interpretation

If any of us is entitled to interpret there would be so many interpretations.

Interpretation are regulated by the law itself (Art 12 e 14 of “disposizioni sulla legge in

generale").

Characteristics of the rules of law

Rules of law are:

-​ general: they apply a class of subjects/situations, not to a specific person (Mario

cannot kill, People cannot kill)

-​ abstract: they are drafted on the basis of hypothetical cases

Norm/provisions: prescriptive statement (rule) that describes a possible situation (facti

species) and says what legal consequence follows if that situation happens.

If this situation happens → then this legal effect applies.

Example:

ARTICLE 1453 ICC Termination of contract due to non-performance

“[I]. In case of contracts providing for mutual counter-performance, when one of the contracting parties

does not perform her own obligations, the other party may at her choice demand (specific)

performance or termination of the contract of the case, without prejudice, in any case, to payment of

damages.

[II]. Termination can also be demanded when a claim has been raised to obtain performance, but

performance can no longer be demanded when termination has been requested.

[III]. The breaching party can no longer perform her own obligations from the date of a claim for

termination”.

if one party does not perform a contract, the other party may choose either to demand

performance or to terminate the contract, and in any case may claim damages.

Structure of a rule of law

-​ Prescriptive statements

-​ Hypothesis of fact

-​ Legal Consequence attached to it

the purpose is to make judgements predictable

Facti species:

part of the norm that describes the event subject to regulation, it is a case on which a law is

formed.

Types of facti species:

1.​ Simple facti species: it refers to an event regulated by one rule of law

Example: in succession law, when a person dies, the law states that succession

begins at the moment of death.

2.​ Complex facti species: it refers to a situation regulated by two or more rules of laws

Example: when a minor buys a house, the law requires both parental assistance (he

is a minor) and court authorization (to buy the house).

3.​ Progressive facti species: it refers to a situation that depends on a future and

uncertain event

Example: contract subject to a condition precedent takes legal effect only when the

future and uncertain event occurs. (until the event occurs, the contract does not take

effect)​

Types of remedies (legal consequence)

Kinds of remedies:

-​ Incarceration and fine (sanione): available in criminal law. They generate general

fear, ensuring greater compliance.

-​ Direct coercive reaction: law enforcement intervention (ex: response to

housebreaking)

-​ Specific performance: (specific in private law), used in order to:

- achieve specific results

- delete illegal situations

- achieve equivalent purpose equivalent to the one that the right of the case was

meant to achieve

Civil vs criminal law remedies:

-​ Criminal law: the wrongdoer is threatened with imprisonment

-​ Civil law: the wrongdoer is threatened with deprivation of money

Not every rule of law implied a remedy or sanction

Example: Article 315-bisCC Rights and duties of the child

That article has no consequences but children's rules are legal rules, because they are part

of the legal system.

Benefits and conditions

Sometimes legal rules provide benefits subject to certain conditions

Example: Article 1322 ICC Contractual autonomy

Parties can determine contract content within the limits imposed by the legal system. They

can also make contracts that do not belong to specific legal types, as long as the contract

serves an interest that is worthy of protection under the legal system. (example leasing)

LECTURE 2: SOURCES OF THE ITALIAN LAW, JUDICIAL ACTIVITY AND

INTERPRETATION OF LAWS

2.1 THE SOURCES OF THE ITALIAN LAW

In a hierarchical order (all others source of law must respect the constitution):

1.​ Constitution : primary source of law

It sets out the basic principles by which the state is organized, defines the rights and duties of

citizens, and establishes the main institutions of government (such as the parliament, the

president, and the courts).

2.​ Ordinary laws of the state: rules made by the national parliament, they regulate many

areas of daily life

3.​ Regional laws: laws made by the regional governments, they apply only within that region

4.​ Regulations: detailed rules made by public authorities to explain how laws are to be applied

in practice. (not the same meaning of other regulation in the terms of regolamento)

5.​ Customs: unwritten rules based on long-standing social practices that people follow

because they are generally accepted as proper

The first 3 sources of law are jointly called Primary sources of law, the two remaining are

called Secondary sources of law.

Extra-ordinem sources: sources that do not fit into the ordinary hierarchy of laws, but that can

temporarily or exceptionally be legal rules.They are usually used in special situations or for specific

purposes.

Example: Italy recognizes the EU so we have another source of law: EU directives and regulations.

This kind of law does involve limitation of the principle of State sovereignty over its territory.

Article 1 Preleggi

“[I]. they are sources of law:

1.​ Laws

2.​ Regulations

3.​ Corporate provisions (controllare leggi regionali ecc)

4.​ Customs”

Historical context: original sources of the italian law in 1942

The sources of the Italian law follow a hierarchical order:

Basic rules of hierarchy:

-​ every ordinary law must respect the Constitution

-​ regional laws must be enacted within the limits of the fundamental principles

established by the laws of the State

-​ regulations are valid when they are not against the laws (they are not contra legem)

-​ customs on subject matters governed by laws and regulations, are relevant when

they are called in by laws or regulations.

2.2 ITALIAN CONSTITUTION

Primary sources of law and fundamental law of the Italian legal system. It contains the

fundamental rules of private law.

Subject matters:

-​ fundamental principles of the State/legal system

-​ most important rights and duties of citizens and social groups

-​ rules on the organizations of the state (division and organization of each powers )

-​ the citizens-State legal relationships

-​ the relationships amongst citizens

2.3 THE ORDINARY LAWS OF THE STATE

Primary sources of law

Different legal acts can be qualified Ordinary Laws of the State:

-​ laws: rules made by parliament

-​ law decrees: urgent rules issued by the government, later approved by Parliament.

-​ legislative decrees: rules made by the government following a law that gives it the

power to legislate.

-​ delegation laws: laws that give the government the power to create legislative

decrees

Ordinary Laws of the State are invalid if they are against the Constitution

The procedure to check if a new law is in compliance with the Constitution is explained into

the article:

Article 134

“[I]. The Constitutional Court judges:

-​ on disputes relating to the constitutional legitimacy of laws and acts, having the force of law,

of the State and of the Regions;

-​ on the conflicts of attribution among the powers of the State and those between State and

Regions, and among Regions;

-​ on the accusations brought against the President of the Republic under the Constitution”.

The Constitutional Court decides if laws are constitutional, solves disputes between State

and Regions, and judges charges against the President.

Creation of laws:

Article 2 Preleggi, Laws

“[I]. Formation of laws and enactment of acts of Government having force of law are run by laws of

constitutional nature”.

Enactment and repeal of laws:

Article 15 Preleggi, Repeal of laws

laws can only be repealed by:

-​ later laws

-​ an express declaration of the legislation

-​ incompatibility between new provisions and previous ones

-​ a new law governed the entire subject matter already governed in the previous law

2.4 ON REGIONAL LAWS

Laws made by regional governments, which apply only in a specific region, not in the whole

country.

Article 116 constitution:

Division of region between:

Special Regions (regioni a statuto speciale): regions authorized to have special laws, always

had autonomy and the legislative power.

Ordinary regions (regioni a statuto ordinario)

Article 117 constitution:

explains which matters the State and the Regions can make laws about.​

Some issues are for the State only, while others can be handled by the Regions, but they

must follow the Constitution and national laws.

There are 3 categories of legislative power:

1.​ Exclusive state legislation: foreign policy, immigration, defense

2.​ Concurrent State-Regional legislation: international relations of Regions, foreign

trade, education, health

3.​ Exclusive Regional legislation: all matter not expressly reserved to State (default

rule)

2.5 REGULATIONS

Secondary sources of law, they have to be in compliance with the law

They are generally distinguished by subject-matter and the competent authority in charge of

enacting them.

Regulations for execution: regulations that explain and apply State and regional laws.

They do not create new laws, but clarify how the law must be carried out.

Article 3 Preleggi: regulations

“[I]. The regulatory power of the Government is governed by constitutional laws.

[II]. The regulatory power of other authorities is exercised within the limits of their

respective competences, in compliance with particular laws”.

the Government and other authorities can make regulations only within the powers given to

them by the Constitution and the law

Article 4 preleggi: on limits to regulatory rules

“[I]. Regulations cannot contain rules against provisions of law.

[II]. Regulations enacted by other authorities cannot also be against Government's regulations

Regulations must respect the law and cannot go against laws or higher government

regulations

2.6 CUSTOMS

Secondary sources of law

Customs are practices followed regularly over time.

Article 8 of Preleggi: Customs

“[I]. In matters governed by laws and regulations, customs are effective only insofar as they are

referred to by them”.

They are legally valid only if laws or regulations expressly refer to them. If a matter is already

regulated by law, customs cannot apply on their own.

Customs’ requirements needed to become law:

-​ objective element: constant and uniform practice

-​ subjective element: people must believe that the custom is legally binding. Without

this belief, it is only a factual habit, not a source of law.

2.7 ON JUDICIAL ACTIVITY AND CONSTRUCTION OF ITALIAN LAWS

Judicial activity: concretization of the rules of law: applying legal rules to real cases.

Judges examine a fact (a person’s behavior) and check if it fits a legal rule to decide if it is

lawful or unlawful.

Judges reason using a syllogism:

-​ fact = minor premise

-​ provision/norm = major premise

-​ judgment = conclusion

Related issues:

-​ to verify the fact

-​ to identify the proper rule of law to be applied

-​ to interpret the law

On interpretation/construction of the law:

Judge or interpreter must look at the text of the provision and solve the case based on:

-​ meaning of the words

-​ connection of words

-​ intention of the legislator (why he enactive that law)

Articles that govern the interpretation of rules of law:

Article 12 Preleggi: Interpretation of the law

“[I]. In applying the law, no other meaning can be given to it other than the one made clear by the

proper meaning of the words, in accordance with their connection, and by the intention of the

legislator.

[II]. If a dispute cannot be decided by a specific provision, then provisions governing similar cases or

analogous subject matters must be taken into account; if the case is still a doubtful one, then it has to

be decided in accordance with the general principles of the legal system of the State”.

Laws must be interpreted based on the words used and the intention of the legislator.

If there is no specific rule for a case, judges should look at similar rules or general legal

principles to decide.

Main points of Art 12:

-​ Literal interpretation: understanding the law by using the normal meaning of the

words and how they are connected in the sentence.

-​ Intention of the legislator: analysis of preparatory works (documents and debates

before a law is approved. They help understand the legislator’s intention)

-​ Analogy: somet