Private Law (prof.ssa N. Coggiola)

Private law

Private law is a relationship between private persons. In traditional private law, persons are on the same horizontal level. Public law applies when one of the parties has supremacy over the other. Civil law applies when the parties are on the same level.

Economic rights

Private law is growing in areas such as:

• Things, obligations, and contracts
• Economic activities are protected by private law
• Family law
• Succession upon death (testament)

What are rules

Legal rules are statements that establish a principle or standard and serve as a norm for guiding or mandating action or conduct. They are always general (a usual way of doing things) and abstract. All violations have to be sanctioned. The general and abstract legal rule must be applied to the single real case (fattispecie). It must be ascertained if the real case under judgment is the same provided for by the legal rule.

Sources of private law

We have:

• National law sources
• International law sources
• EU law sources: can apply in Italian law because we are part of the European Union

Relationship among the sources

These include:

• Hierarchical principle
• Chronological principle: the last law wins over the previous
• Specialty principle: subject where there exists a special law (e.g., Italian consumer code is a special code)
• Competence principle: some public authorities

National sources

1. Constitution
2. State laws - primary sources: civil codes, issued code
3. Regulations – secondary sources
4. Customs and usage

Italian constitution

Promulgated in 1947 and became effective in 1948. It includes general principles on the organization of the State. Fundamental principles are:

• Freedom of association (art.18): Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.
• Right of equal treatment (art.3/I): All citizens have equal social dignity and are equal before the law, without any type of distinction.
• Right of property (art. 42): Property is private and public; private property is recognized and guaranteed by the law.
• Freedom of private enterprise (art.41): Private economic enterprise is free; it may not be carried out against the common good.
• Family (art. 29, 30, and 31): The Republic recognizes the right of the family as a natural society founded on marriage (29); the right of parents to support, raise, and educate their children (30); the Republic assists the formation of the family (31).

Primary sources

• Leggi (L.) - Statutes
• Decreti legge (Decree-Law – D.L.)
• Decreti legislativi (Legislative Decrees – D.Lgd) acts having the force of law
• Leggi regionali (Regional Laws)

Civil code (c.c.)

Issued in 1942, it includes "preliminary provisions on the law in general" and consists of 6 books:

• Persons: legal person
• Succession upon death
• Property: possession
• Obligations: relationship between two people who have debt or credits with each other
• Work
• Protection of rights

Sectorial codes

• Consumers code
• Insurance code: houses, cars, dogs
• Privacy code: regulating all the rights
• Tourism code

Secondary – Regulations

Regulations are related to laws and are made to implement them.

Customs and usage

This is an unwritten source of law with the following elements:

• Material/objective element: they are general, repeated, and constant patterns of behavior
• Psychological/subjective element: they are observed as if they are legal duties

International sources

These include:

• International conventions
• Private international law (national sources regulating the relationship between nations and foreign sources)
• European Union Regulations
• European Union Directives
• Other Sources (EU treaty)

The interpretation of statutes

Article 12 preliminary provisions include:

• Literal
• Teleological (logical)
• Systematic
• Historical (what is the meaning of the law)
• Restrictive
• Authentic
• Judicial
• Administrative
• Doctrinal (made by professors)
• Analogy, art.12/II preliminary provisions, where there is a gap in the provisions
• Analogia legis, similar cases or akin matters
• Analogia iuris, when the general principles of the system are applied
• Analogy is forbidden for criminal cases, special exceptional provisions (e.g., earthquake)

General principles

These provide broad and elastic provisions. Examples include:

• Good faith
• Public morals (in Italy, this is going to disappear)
• Public order

They are linked to the actual context, which has to be checked all the time.

Legal formants

Formants are the factors that form a system:

• Legislation
• Judicial decisions
• Scholarly writings
• Interpretation of practicing lawyers
• Others: ideology, religion, "declamatory" statement
• "Cryptotypes" (example: mentality of legal practitioners)

These different formants compete to provide a solution. This solution can sometimes be consistent with the theoretical statements of the system. Some formants can prevail in some fields of law. Rules created by a formant can be transplanted into a different legal system.

Rights and interests

Legal relations involve a relationship between two or more subjects or relations with things:

• Active side (rights, powers, licenses)
• Passive side (duties, obligations)

The subject right

Is the power conferred by the law to a certain subject to freely act in a certain domain. It was born as a universal and unconditional right, but it is now thought that it could be limited in the interest of other subjects or public interest.

Relative and absolute rights

Further distinctions include:

• Property rights (diritto reale)
• Patrimonial rights
• Personality rights
• Disposable
• Non-disposable

The abuse of right

Created by judges and doctrine, the legal action to fulfill the legitimate right would create an unjustified damage to a party or the general interest because of circumstances, purpose, or results.

Obligation and duty

• Prohibition to harm a subjective right of another subject, in case of absolute rights.
• Obligation: Prohibition to harm a subjective right of another subject, in cases of relative rights.

Subjection and liability

• 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, collective, and diffuse interests

• Legitimate interest: situation of the private subject toward the power of the public administration.
• Collective interests: belonging in a certain group of subjects.
• Diffuse interests: belonging to the general community.

Legal facts and acts

• Facts: any event. Example: a damage caused by a tree.
• Acts: event caused by man.
• Non-patrimonial acts
• Patrimonial acts

Patrimonial acts

• Acts in return for payment (atti onerosi)
• Acts free of charge (atti gratuiti)
• Acts among living subjects

Types of acts

• Unilateral act: comes from only one party.
• Bilateral acts: come from two parties.
• Multilateral acts: come from more than two parties.
• Collective acts: different people join for a common will.
• 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 or elements.
• Licit acts: according to the law.
• Illicit acts: contrary to the law.

Originating and derived title

• Originating title: title constituted autonomously by the possessor.
• Derived title: title obtained from an existing previous title-holder (in return for payment), e.g., mortgage.

Acquisition and loss of rights

Acquisition of rights can occur through:

• Universal title: you acquire all the assets of him/her.
• Particular title

Loss of rights occurs through:

• Transfer of the rights (free or compulsory)
• Limitation (prescrizione): you lose it because you don’t use it for a certain amount of time.
• Article 2934: The limitation period starts in the moment the subject holder of the right starts not using it. Limitation times are different:
• Suspended: because of the relationship between the parties, or subjective [...] are the right holder.
• Interrupted: because of interrupted acts of the right holder or the other party.
• Lapse of right (art. 2964): you don’t exercise within the prescribed title limit.

Legal persons

Legal persons are the collective entities (associations, foundations).

Legal capacity

• Legal capacity (capacità giuridica): eligibility to have rights and duties.
• Capacity to exercise rights (capacità di agire): capacity to perform legal acts concerning one's own rights (acquired with legal majority art.2).

Acquisition of legal capacity

Natural persons acquire legal capacity at the moment of birth.