Private Law (prof.ssa N. Coggiola)

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

• Decisions are taken of the basis of the majority of the wills.

•

PATRIMONIAL AUTONOMY

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

§ members;

Patrimonial autonomy is “perfect” in bondies 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 individual

§ members;

In bodies not endowed with “legal personality” the patrimonial autonomy is

§ “imperfect”

Creditors of individual members, have no recourse to any property owned by the legal

§ person

Creditor 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

Where the principal office is established

Ø Where the residence of the legal person is established in its statute

Ø Legal consequences of the residence

Ø

TYPES OF LEGAL PERSONS

Public and private

Ø Legal person with a prevailing personal element

Ø Legal persons with a prevailing property element

Ø Profit and non-profit

Ø With or without legal personality

Ø 7

LEGAL PERSONALITY

Public legal persons: acquired with their establishment

Ø Private profit legal persons: (first you create) registration on the registry of businesses

Ø camera di commercio

à

Private non-profit legal persons: registration on public registry.

Ø

ASSOCIATIONS

Prevalent personal element

Ø Can be recognized or not by the public authority

Ø Created with a constituting instrument

Ø The charter sets out the rules

Ø

Constituting instrument and charter must contain:

Name of the legal person

Ø Objectives: what the association want

Ø Properties (asset)

Ø Address of its main office: where the association is

Ø Rules governing the association

Ø Rights and duties of members and conditions of admission: what the member have to

Ø do

Rules on the dissolution

Ø Administrators or directors have the executive powers – act as representative of the

Ø legal body

Members’ meeting have the decisional power, can decide with a qualified majority of

Ø its members.

DISSOLUTION OF ASSOCIATIONS

Dissolution:

Reasons provided for by constituting instrument or charter

Ø Attainment or impossibility to attain the objectives

Ø Loss of the members

Ø

FOUNDATIONS are always recognized

à

Prevailing property element

⇒ Established by testamentary disposition or by the unilateral act of a founder or some

⇒ founders

Endowment of the foundation with property, assets

⇒

Constituting instrument and charter must contain:

Name of the legal person

⇒ Objectives

⇒ Properties

⇒ Address of its main office

⇒ Rules governing the foundation

⇒ Criteria for the distribution of revenues to beneficiaries

⇒ Rules on the dissolution

⇒ Always recognized by the public authority

⇒ After the recognition, they become independent from the founder

⇒ Administered by administrators or directors

⇒ Controlled by public authority

⇒ 8

DISSOLUTION OF FOUNDATIONS

Dissolution:

Reasons provided for by constituting instrument or charter

⇒ Attainment of the objectives

⇒ Impossibility to attain the objectives

⇒ (The main difference from the association is that we can’t loss persons because

we only have money).

COMMITTEES

Group of people organized to raise money for a general purpose

♦ Generally not recognized, without legal personality

♦ Imperfect patrimonial autonomy

♦ Organizers, members of the committee and who take control of funds, assume personal

♦ liability for the funds

Subscribers are only liable for the promised amount of money.

♦ OBLIGATIONS

Obligations are a legal relationship between two parties: debtor and creditor and the

relationship is exclusive just between them.

- obligation refers to the money or something tat have an economic value

The obligor, or debtor, who is constrained to behave in such a way that the obligee (creditor)

may acquire a sum of money loaned or receive a promised prestation.

When a person enter in an obligation, he has to do three things:

1. giving something

2. doing something

3. refrain from doing something

SOURCE OF OBLIGATIONS

It refers to Art. 1173 c.c.:

- contracts: when you stipulate a contract, the obligation is the effect of it

- unlawful acts

- any other acts or facts which are capable of producing obligation under the law

NATURAL OBLIGATIONS

We have to distinguish obligations to natural obligations:

- natural obligations arise from principles that may be of a moral, social or religious nature

or similar.

LIABILITY FOR THE OBLIGATION

The debtor is potentially liable in two ways:

- personal liability: compensation for damage in the event of non-performance

- property liability: his present and future goods are subject to action by an unsatisfied

creditor.

INTEREST OF CREDITOR

Art. 1174 c.c. and the performance must be capable of economic evaluation. 9

We can also distinguish between PATRIMONIAL INTEREST or NON PATRIMONIAL INTEREST

RULES OF FAIRNESS

Fairness means don’t damage them, be honest.

PASSIVE JOINT AND SEVERAL OBLIGATIONS

Joint and several have to be use together and they mean: SOLIDARIETA’

TYPES OF OBLIGATIONS

- Simple obligation: can be performed by a single act, or by more than one act to be carried

out by a single obligor.

- Alternative obligation: the obligor can choose between the performance of two or more

obligations;

Sometimes it could be conferred on the obligee or a third party

DIVISIBLE AND UNDIVISIBLE OBLIGATIONS

Is indivisible when its performance is necessarily such that it cannot be divided, either by its

nature or because the contemplation of the parties precludes it; in all other cases, the

obligation in divisible.

(it depends by the nature of the obligation: if I have to give you back an amount of money, i

can divided the sum into small part, but if my obligation is a fisical thing, for example an

animal, as a cow, i can’t divided it.)

PERFORMANCE OBLIGATIONS

The debtor must exactly perform it

• If the creditor accepts, the debtor can substitute new performance to the original one.

• The original performance is extinguished only if the new performance is carried out.

The debtor who does not perform exactly his obligation is in default, unless he proves

• that the non-fulfillment or delay derived by a cause not imputable to him.

OBLIGATIONS OF MEANS AND OF RESULTS

Obligations of means: only the due diligence of the debtor is taken into consideration

§ to ascertain the liability of the debtor

Obligations of results: both due diligence and production of a certain result are taken

§ into consideration to ascertain the liability of the debtor.

PLACE OF PERFORMANCE

1. The payment must be done at the address of the creditor

2. In cases in which the performance consist in the delivery of a determined thing: for

example Mr. Black bought a sofa and it must be delivered to him.

TIME OF PERFORMANCE

The time of performance is specified, because we have to know not only the place but also the

time. For example: the delivery has to be done in 60 days.

Can be:

Immediately

§ Deadline decided by parties

§ Deadline fixed by the judge

§ 10

In favor of the debtor, he can waive it (waive: possibilità di rinuncia);

Ø it means that the debtor can perform his obligation in any time he wants.

in favor of the creditor, he can waive it.

Ø

PERFORMANCE BY A THIRD PARTY

Obligations can be performed by a third party if the creditor has no interest in having it

performed by the debtor

PAYMENT WITH SUBROGATION

Voluntary subrogation in two cases:

a third party pays in the place of the debtor, and the creditor asks him to take over his

Ø rights against the debtor

the creditor substitute himself with a third party: you buy a house and you have a

mortgage. You ask a loan from a bank. The bank is the creditor and i am the debtor. A

third party buys it and a the moment when i have to give the money back, the third

party can say: I’ll pay you the half of the money.

A third party pays in the place of the debtor, and the debtor asks him to take over the

Ø creditor’s rights against him.

PERFORMANCE TO A THIRD PARTY

Performance to a person which is not a creditor.

Performance can be also made in the hands of an agent of the creditor.

You are paying somebody who is the aim of the creditor: example, when you are going to buy

socks in Calzedonia, you are not paying directly the owner, but the casher who is an agent of

the owner.

“APPARENT CREDITOR” CASE

The obligation is extinguished if:

The circumstances are unambiguous: because of the negligence of the creditor, can

Ø thinks that he is paying directly to a creditor who is just an agent.

The debtor is in good faith

Ø The creditor conduct was negligent

Ø

PERFORMANCE TO AND BY INCAPABLES

If i have to give back an amount of money to an 11 years old’s person, I have to give the

amount to his parents or his tutor. If i give him directly the amount, my payment is not

extinguished because he is not capable.

Payment by an incapable debtor cannot be declared void because of the incapacity of

the person who made it. (void: null).

PECUNIARY OBLIGATIONS

Pecuniary, from Latin “pecunia”, means money.

Pecuniary obligations are those obligations which are represented by sums of money

Ø “nominalist principle”: obligations must be paid with money that is legal tender at the

Ø time of payment.

The value of the money is nominal, that is to say equivalent to what is written on it,

Ø independently of its real purchasing power.

If I’m going to damage a car because I’m driving fast, and I hit a luxury car, for example,

I have to pay the damage obviously. If I repaid that in many sums and in many years,

the nominal value can increase. 11

COMPOUNDING

Compounding is the payment of interest on interest.

Ø Is generally forbidden

Ø

TERMINATION OF OBLIGATION

With performance with satisfaction

à

• Without perfo