Italian Private Law - Diritto Privato (Prof. Coggiola)

“THE CIVIL CODE”

Was issued in the 1942, inspired by French Civil Code of Napoleon. It gives the preliminary provisions on

the law in general and it is made by 6 books which are:

1. Persons

2. Succession upon Death

3. Property

4. Obligations

5. Work

6. Protection of rights

Then, 20 years ago they realized that just one Civil Code was not an optimal choice, so they started to add

some Sectorial Codes like:

➢ Consumers Code

➢ Insurance Code

➢ Privacy Code

➢ Tourism Code

Regulations (Secondary Sources):

They were written only because there is law, in fact they are made to implement them.

Custom and Usage:

They consist in unwritten source of law, divided into:

➢ Material Objective Elements: which are general, repeated and constant patterns of behaviour.

➢ Psychological/Subjective Elements: which are seen as a law (so observed like them).

INTERNATIONAL LAW SOURCES:

• International Convention (for example Vienna Convention)

• Private International Law

• European Union Regulations

• European Union Directives

The Interpretation of Statutes:

• Literal

• Teleological (logical)

• Restrictive/Extensive

• Authentic

• Judicial

• Administrative

• Doctrinal

Analogy is applied when there is a gap in the provisions and it is forbidden for criminal cases, for whom

there are special or exceptional provisions.

1. Analogia Legis: when there are similar cases.

2. Analogia Iuris: when the general principles of the system are applied.

LEGAL FORMANTS:

Elaborated by Rodolfo Sacco (Trento Theses), formants are the factors that form a legal system. It is

possible to locate several types of formants:

• Judicial Decisions (typical of countries likes England-Common Law) I precedenti tratti dalle

sentenze dei giudici sono una delle fonti del diritto, per questo motivo in italiano, si chiama

giurisprudenziale.

• Legislation (typical of countries with a System of Civil Law) Il diritto è creato dal parlamento o da

altra autorità pubbliche attraverso la legge, dunque in italiano si dice formante legislativo.

• 

Scholarly Writings Consiste nell’opera degli studiosi del diritto che attraverso la pubblicazione di

tesi influenzano e determinano il giudizio delle corti.

• 

Cryptotypes Consiste in regole esistenti nella società che non sono espresse.

These different formants compete to provide a solution, that can sometimes be inconsistent with the

theoretical statements of the system and it is often the consequence of a selection of one of the possible

solutions. Moreover some formants can prevail in some fields of law and rules created by a formant can be

transplanted in a different legal system.

Rights, Interests and Legal Relations

Legal Relations:

Can consist in relationships between two or more subjects or in relationships with things.

Active Side: rights, powers, licenses and expectations.

Passive Side: duties, obligations, subjections and burdens.

The Subjective Right:

Is the power conferred by the law to a certain subject to freely act, in a certain domain (e.g. property). It

was born as a universal and unconditional right, it is now thought that it could be limited in the interest of

other subjects or public interests.

Relative Rights: toward some subjects

Absolute Rights: toward every other subject

Property Rights: on tangible things, against anyone (diritto reale).

Choses in action/credit rights/obligations: against specific obligors.

• Patrimonial Rights

• Personality Rights

o Disposable Rights

o Non-Disposable Rights

The Abuse of a Right:

Was created by judges and doctrine and consists in the legal action to fulfil the legitimate right would

create an unjustified damage to a third party or the general interests, because of circumstances, purposes

or results.

Other Subjective Situations:

Power and Licenses: rights to modify the legal situation of another subject.

Legal Expectation: future prospects or entitlement to unvested rights (rights that are not guarantee, e.g. an

inheritance).

Authority: power to act in somebody else interest (e.g. child).

Status: set of active and passive legal situations of a subject.

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: situation of the person submitted to the power of another subject.

Liability: situation of the person which committed an illicit act and must compensate the injury caused.

Legitimate Interest: situation of the private subject toward the power of the public administration.

Collective Interests: belonging to a certain group of subjects.

Diffuse Interests: belonging to the general community.

Legal Facts and Acts:

Fact: any event

Act event caused by a man

Patrimonial Acts: acts that modified our assets.

Non Patrimonial Acts: for example marriage.

Atti Onerosi: acts in return for payment

Atti Gratuiti: acts free of charge

Acts among living subjects: for instance a contract to sell something

Acts made for the event of the death of a subject: will

Unilateral Act: acts that comes from only one part

Bilateral Act: for example a sale of something

Multilateral Act: agreement among many people.

Collective Act: among community.

Valid Acts: they have all the requisite required by the law and elements.

Invalid Acts: they do not have all the requisite required by the law and elements.

Licit Acts: according to the law.

Illicit Acts: contrary to the law.

Acquisition of a Rights:

Originating Title: title constituted autonomously by the possessor.

Derived Title: title obtained from an existing previous title-holder (e.g. buying an horse with a mortgage).

 Free of Charge

 In return for payment

✓ Between living subjects

✓ Following the death of the title-holder

o Universal Title

o Particular Title

Loss of Rights:

Transfer of the Rights: can be free or compulsory.

Limitation (prescrizione): when you lose it because you don’t use it.

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

law.

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

Limitation time are different depending form the case (form 20 years to few months).

Suspension of the Limitation Period: because of the relationship between the parties, or subjective

conditions of the right holder.

Interruption of the Limitation Period: because of interruptive acts of the right holder or the other party.

Lapse of the Right: the rights is not exercise within the prescribed time limit.

Natural Persons

Natural Persons are individuals (while legal Persons are collective entities, like associations for example);

both are legal subjects and so they are subjected to the law quite at the same way.

Legal Capacity:

Legal Capacity (capacità giuridica) is the eligibility to have rights and duties.

Capacity to exercise rights (capacità di agire) is the capacity to perform legal acts concerning his own rights.

Natural persons acquire the legal capacity at the moment of birth; the child must be alive and capable of

breathing at the moment of birth. Unborn child, already conceived, can also have some rights (e.g. will).

Personality Rights and Civil Freedoms:

Right to a name and surname (contained in the art. 9 c.c.; also protection and nickname)

Right to physical integrity (forbid to sell pieces of your body and mutilation)

Right to free movement

Right to religious freedom, free speech, free political ideas

Right to honour

Right to personal truth (nobody can go around and telling something not true)

Right to privacy

Residence, Domicile and Abode:

Residence: the place where the person has his regular abode, normally leads his life.

Domicile: the place where the person takes care of his affairs and interests.

Abode: where the person could be currently be found.

Capacity to exercise rights:

Is the capacity to perform valid legal acts and transactions and it is acquired with legal majority, at 18 years

old.

When the person is unable to take care of his interests, we speak of incapacity to exercise rights or perform

acts (incapacità di agire).

Incapacity to exercise rights:

We can distinguish in:

• Legal

• Judicial

• Natural

With reference to its consequences, we talk about:

➢ Relative incapacity

➢ Absolute incapacity

Legal Incapacity to exercise acts:

✓ Minors of age

✓ Emancipated Minors: 16 years old, following their marriage or under other special circumstances

(e.g. exercise of a business enterprise).

✓ Judicial Interdiction or Disqualification: for persons suffering from habitual mental infirmity

(INTERDIZIONE).

✓ Judicial Disability: for persons with less serious forms of mental infirmity, blindness or deaf

mutism, drugs or alcohol abuse (INABILITAZIONE).

✓ Supporting Administration: it is a form of support for people who are not necessary naturally

incapable but nevertheless need some form of assistance (AMMINISTRAZIONE DI SOSTEGNO).

✓ Judicial Interdiction (when sentenced to more than 5 years of prison)

✓ Bankruptcy: it is limited to his assets.

Absolute Incapacity to exercise acts:

It concerns both acts of management (every day acts) and acts of dispositions (acts that modify the

personal assets).

In each case there is a person who does it for him:

o Minors: represented by parents or guardian.

o Disqualified: represented by the guardian.

Relative Incapacity to exercise acts:

It concerns just acts of disposition, while the other acts, like everyday acts can be performed in anyway

(like, for example, to go and buy the milk). In the following cases they have to be heloed by the curator in

performing acts of disposition.

o Emancipated Minors

o People under Disability

Moreover, they can be authorized to make business.

o People under Supporting Administration: can perform certain acts, selected by the judge, only with

the help of the administrator.

End of the Incapacity to exercise acts:

➢ Major Age, 18 years old

➢ Healing, in case of disqualified or disabled persons.

➢ End of the need for assistance in cases of persons under supporting administration.

Natural Incapacity:

It is the incapacity of understanding and intending in a person that is legally capable of acting. It is a

temporary situation, not officially recorded.

Violation of the rules on Incapacity to exercise acts:

In cases of legal incapacity, the contract signed by the legally incapable person is voidable and could be

annulled. The only exception is when the contract is signed by the minor, that with fraud concealed his

minor age.

In cases of natural incapacity, unilateral acts can be annulled if such acts “result