Italian Private Law - Diritto Privato (Prof. Coggiola)

Private law

We will use the Italian Private Law as an example of a System of Civil Law. The aims of the Private Law are two: first, the resolution of conflicts, and second, the prevention of conflicts (which is less expensive and so very important as well). Private Law is about relationships between private individuals. It is divided into Civil Law (where people are on the same level) and Public Law (when one has supremacy over the other, like the Government).

Topics

• Economic Rights (things, contracts, obligations)
• Economic Activities
• Family Law
• Succession upon Death

Legal rules

Legal rules prescribe human conduct. They are always general and abstract, and their violation is generally sanctioned. You must apply these general rules to a single real case (fattispecie) and check if the case has all the elements of the rule.

Sources of private law

• National law sources
• International law sources
• European Union law sources

What do we do if there are two laws in conflict belonging to different sources? We apply different principles depending on the case:

• Hierarchical Principle (so, for example, a European law > National law)
• Chronological Principle (same source, the recent one > the old one)
• Speciality Principle (rules applied just to a certain field/person)
• Competence Principle (related to a specific agency)

National law sources

• Constitution
• State Laws (primary sources)
• Regulations (secondary sources)
• Custom & Usage

Constitution

Was promulgated in 1947 and became effective in 1948. It contains 139 articles plus commas. It states the general rules/principles about the organization of the State (“Diritti e Doveri dei cittadini” and “Ordinamento della Repubblica”). Moreover, it contains the Fundamental Principles (which are the first 12 articles):

• Freedom of Association (art. 18); was not provided by the Civil Code that was written under Fascism.
• Right of Equal Treatment (art. 3/1)
• Right of Property (art. 42); “the Property must be used following a social approach”.
• Freedom of Private Enterprise (art. 41)
• Family (art. 29, 30, 31)

State laws (primary sources)

• Leggi (L.); Statutes
• Decreti Legge (D.L.); Decree Laws
• Decreti Legislativi (D.Lgs.); Legislative Decrees
• Leggi Regionali; Regional Laws

The civil code

Was issued in 1942, inspired by the French Civil Code of Napoleon. It gives the preliminary provisions on the law in general and is made up of 6 books which are:

• Persons
• Succession upon Death
• Property
• Obligations
• Work
• 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 a law; in fact, they are made to implement them.

Custom and usage

They consist in unwritten sources of law, divided into:

• Material Objective Elements: general, repeated and constant patterns of behaviour.
• Psychological/Subjective Elements: regarded as law (so observed like them).

International law sources

• International Convention (e.g. 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 which there are special or exceptional provisions.

• Analogia Legis: when there are similar cases.
• 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 like England-Common Law; judicial precedents are sources of law.
• Legislation: typical of countries with a System of Civil Law; law is created by parliament or other public authorities, referred to as legislative formants.
• Scholarly Writings: works of legal scholars that influence court judgments.
• Cryptotypes: existing societal rules not explicitly expressed.

These different formants compete to provide a solution, which can sometimes be inconsistent with the theoretical statements of the system and often results from selecting one of the possible solutions. Additionally, some formants can prevail in certain fields of law, and rules created by one formant can be transplanted into a different legal system.

Rights, interests and legal relations

Legal relations

Can consist of 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
  • Disposable Rights
  • Non-Disposable Rights

The abuse of a right

Was created by judges and doctrine and consists of the legal action to fulfil the legitimate right that 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 guaranteed, e.g. an inheritance).

Authority

Power to act in somebody else's 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 who 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 come from only one part.

Bilateral act

For example, a sale of something.

Multilateral act

Agreement among many people.

Collective act

Among the community.

Valid acts

They have all the requisites required by the law and elements.

Invalid acts

They do not have all the requisites 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 a horse with a mortgage).

• Free of Charge
• In return for payment
• Between living subjects
• Following the death of the title-holder
  • Universal Title
  • 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 at the moment in which the subject holder of the right starts not using it. Limitation times are different depending on the case (from 20 years to a 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 right is not exercised 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 in quite 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 one's own rights. Natural persons acquire legal capacity at the moment of birth; the child must be alive and capable of breathing at the moment of birth. An 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 (forbids selling 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 telling something not true)
• Right to privacy

Residence, domicile, and abode

Residence

The place where the person has his regular abode, and normally leads his life.

Domicile

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

Abode

Where the person could currently be found.

Capacity to exercise rights

Is the capacity to perform valid legal acts and transactions and 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 between:

• 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 necessarily 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 (everyday acts) and acts of disposition (acts that modify personal assets). In each case, there is a person who does it for him:

• Minors: represented by parents or guardian.
• Disqualified: represented by the guardian.

Relative incapacity to exercise acts

It concerns just acts of disposition, while other acts, like everyday acts, can be performed anyway (like, for example, going and buying milk). In the following cases, they have to be helped by the curator in performing acts of disposition:

• Emancipated Minors
• People under Disability

Moreover, they can be authorized to make business:

• 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, who with fraud concealed his minor age. In cases of natural incapacity, unilateral acts can be annulled if such acts result in grave prejudice to the person who performed them. Personal acts (marriage, will, gift) can always be annulled. Contracts cannot be annulled except when the bad faith of the other party to the contract is apparent from the prejudice that has ensued or can ensue to the person incapable of understanding and intending, or from the nature of the contract or otherwise.

The end of the natural person

The end of the natural person is the moment of death, that is to say when the brain definitely stops working. When it is impossible to determine the chronological order of deaths, there is a presumption that everybody died at the same moment.

Disappearance, absence, presumed death

Disappearance

The person has not reappeared at his domicile, and there are no news from him – a curator is appointed.

Absence

After 2 years from the last news, the heirs are temporarily put into the possession of the absent person’s assets.

Presumed death

After 10 years from the last news from the absent person, the heir inherits his asset, and the spouse can marry again.

Legal persons

Legal persons are also called intermediate communities or bodies or artificial persons. They do not exist in nature, but have a purely legal existence so they are created for legal purposes. They cannot enter into legal relationships which require some qualities that are only owned by natural persons (of family nature). However, they can be sentenced in force of criminal provisions.

Essential elements

• Persons
• Property (good or assets)
• Object (lawful, possible, determined, fixed): must have a purpose which has to be possible.
• Recognition (eventually)

Capacity to exercise acts

They act through their organs, which are instruments of the legal person. The will of the organ is directly imputed to the legal person and decisions are taken based on the majority of the wills.

Patrimonial autonomy

The property of the legal person is kept separate from the personal property of its members.

• Perfect: in bodies endowed with “legal personality”; creditors of individual members have no recourse to any property owned by the legal person. Creditors of the legal person have no recourse to any property owned by the individual members.
• Imperfect: in bodies not endowed with “legal personality”; creditors of individual members have no recourse to any property owned by the legal person (as before). Creditors of the legal person have recourse to the property of the administrator or those who acted in the name of the legal person.

Residence of the legal person

It is where the principal office is established, so where the residence of the legal person is established in its statute. The legal consequences depend on the residence (for example, if one has the residence in Italy, it will follow Italian laws).

Types of legal persons

• Public: for example, a University
• Private: with the aim to fulfil private personal interest.
  • Profit: with the aim to make money
  • Non-Profit: the aim isn’t economical (so there is a special treatment regarding taxation).

Moreover, they can be with/without legal personality.

Legal personality

How do they acquire Legal Personality?

• Public legal persons acquire it with their establishment.
• Private Profit legal persons with the registration on the registry of businesses.
• Private Non-Profit legal persons with the registration on the public registry.

From the moment they acquire Legal Personality, they acquire personal autonomy. We will talk about Private legal persons without the economic aspect.

Associations

• Prevalent personal element
• Can be recognized or not by the public authority
• Created with a constituting instrument (in front of a notary)
• The Charter sets out the rules, must be written if you want the association to be recognized; it must contain:
  • Name of the legal person
  • Objectives
  • Properties
  • Address of its main office
  • Rules governing the association
  • Rights and duties of members and conditions of admission
  • Rules on the dissolution

Administrators or directors have the executive powers and act as representatives of the legal body. Members’ meetings have the decisional power and can decide with a qualified majority of its members.

Dissolution of associations

For which reason is the association going to dissolve?

• Reasons provided for by the constituting instrument or charter.
• Attainment or impossibility to attain the objectives.
• Loss of the members.

Foundations

• Prevalent property element
• Established by testamentary disposition or by the unilateral act of a founder or some founders
• Endowment of the foundation with property, assets
• The constituting instrument and Charter must contain:
  • Name of the legal person
  • Object