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LANGUAGE

AND RULES OF ITALIAN PRITVATE LAW: AN INTRODUCTION



Chapter 1: THE LEGAL SYSTEM

What is a rule? A rule is a statement that prescribes some human conduct
defined as compulsory (duty to act), prohibited (duty to not act) or as lawful
(possible to act).
We can deal with four different types of rules providing guidance (and these
types are all encompassed by the law):
1. Personal when it regards the conduct of a specific person or group of
specific persons;
2. Factual when it covers one or more factually specified situations;
3. General when it directs the conduct of whoever may find himself in a
specified situation;
4. Abstract when it covers any situation that repeats the one envisioned.

Saves exceptions, rules contained in Codes, Acts, Statutes, Decrees and
Regulations, are both general and abstract [and a clear example is the art.927 of
the Italian Civil Code (CC) in which its stated that whoever finds a movable
thing shall return it to its owner].

Weve to make an important distinction among the rules and the norms, in fact
the norms are perspective insofar they direct human conduct to make a certain
pattern of behavior.

As we can image, when we talk about legal rules, we take into consideration an
huge field of rules but the main difference is the one between legal and non
legal rules. It follows that a criterion of recognition is necessary to distinguish
legal rules from all the others. The legal rules are the ones which 1) legitimate
use of force in case of violation (Hoebel); 2)are subject to the enforcement by a
judge decision (English legal scholars); 3) were stated by recognized sources.
The three definitions above are considered to be incomplete; in fact, the legal
rule is solely that which is formed out of one of the modes of production laid
down by the system itself.

First of all, a legal system is a system of rules the enforcement of which is
entrusted to the authority of a court. The court is called upon to determine who
is in the right and who is in the wrong and is vested with the power to decide the
controversy and the decision has to come from a source. Therere three main
sources: juridical precedents, official collections (collections of rules),
dictated directly by an Authority having the power to do so. In a mature
system a court is not at liberty to draw upon whatever source it chooses to guide
its judgment since legal rules have by now assumed characteristics that
distinguish them from moral rules and customs.
Historically, the State is the most important legal system with a complex and
sophisticated law making process in which the sources of law are clearly
identified.

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A source of the law can be preliminary and broadly defined as any act or fact
generally accepted as a Valid Process for the Making of Legal Rules in a given
system hence we deal with a large variety of sources. (today the most important
source of legal rules are the acts of parliament, to what concerns Italy)
Traditionally the main distinction is made between written and unwritten
sources but this distinction is not quite correct since juridical precedents are no
less written and may be equally analyzed according to the interpretation. It
follows that in contemporary systems we can distinguish two prevailing types of
sources:
1) juridical precedent Its a decision already rendered in a case similar
to the case to be decided, or a series of uniform cases hence case law
from which a rule is extracted, that is, a criterion for resolution which
is to be applied to a similar case.
2) Legislative act its a proceeding that may vary in complexity, by which
an Authority vested with the power to legislate (to make laws) draws up a
text containing legal rules.

But now a new question arises: who decides what sources are apt to generate
rules? In every system therere rules setting forth the ways and means to make
the rules of that system (art. 70 of the Italian Constitution declares that the two
Houses of Parliament legislate and the corresponding power is governed by
apposite provisions). Remember that even if a rule does not expressly exist, it
may be deducted from the evolution of the system as a whole.
The rules that govern the making of laws in a legal system are themselves
regulated by specific rules and the legitimacy of a legal system stems from its
affirming itself as such, within given social grouping.
[NB: what is legal is only what the system itself has defined as such, as it is
traceable to the proper source].

Now weve to take into consideration the different kinds of systems, for the
system of the State, the law is only domestic law while the laws of another State
are considered to be mere facts . [i.e. in Italy theres the law of the State and the
laws of the Church dont have a legal meaning in Italy]. Its in this contest that
weve to talk about and clearly understand the relativity of the concept of law
and the plurality of the systems.
For what concerns international law, which regulates relationships between
states, we deal with treaties that take into consideration different customs and
which have to be observed at an international level and the conduct of a state
violating international rules is unlawful under international law. (be careful that
what can be considered unlawful at an international level it may be not within a
States borders!! art.10 of the Italian Constitution states that the Italian legal
system conforms to the international rules generally accepted. This clause
refers to the customs and principles of international law.)

Another important aspect that must be taken into consideration is the
relationship between law and economics since economic concepts are used to
explain the effects of laws, to assess which legal rules are economically efficient
and to predict which rules will be promulgated.
positive laws and economics: uses economic analysis to predict the effects
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of the various legal rule;


normative rules and economics: policy recommendations based on
economic consequences of different alternatives.

The sources of Italian Law

Art.1 of the Preliminary provisions to the Civil Code lists the sources of the
Italian law as follows:
1. Laws all the enactments within the legislative function under the Italian
Constitution-
- Statutes Acts of Parliament made in conformity with the appurtenant
procedures laid down in art.70 of the Italian Constitution and it consist in
the approval by the two Houses of Parliament, in the promulgation by the
President of the Republic and in the final publication in the Official
Gazette)
- specific Enactments same statutory powers as the Statutes but
made with different procedures; Legislative Decrees (made by the Italian
Government on delegated legislation), Law Decrees (made by the
Government in the case of extreme necessity and urgency and
subsequentially approved by the Houses)
- Constitution it grants the power to legislate to the Regions (art.117)
but remember that on the issues within the jurisdiction of the State, the
law of the Regions will have to respect the fundamental principles set by
the State.
2. (domestic) Regulations they are delegated and subordinated legislation.
They may be issued by Ministries, Regions, Provinces or Municipalities.
3. Customs or Usage they are within the subsidiary sources of law, they
cannot conflict with any other (higher) source of Law.
In order to have a custom, a certain pattern of behavior has to be:
a) general, repeated and constant within a certain community
b)members of that community observe it in the belief that they are bound
by that rule of behavior.
We make a difference between customs in areas not regulated by other
sources (praeter legem, ex. Duty of winners to leave a tip to a croupier in
an authorized gambling house, according to Italian jurisprudence) and
customs explicitly referred to by higher sources of law (secundum legem,
ex. Art.1498 of the Civil Code which states that in a sale, in the absence of
an agreement and where no other customs apply, payment must be made
at time of delivery and where such delivery is performed).

The Constitution of the Italian Republic was promulgated on December 27,
1947and became effective on January 1, 1948 and from that moment, the
Constitution has stood as primary source of law. Its divided into two sections
and the first one includes the fundamental rights and duties of the citizens
towards not only the Republic but also towards one another (articles 13-54) and
the second part regards the State organization and Constitution Review (articles
55-139).
[slides:] Its a written constitution (as opposed to customary constitution of
Great Britain).
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It cannot be changed by ordinary statutes (rigid Constitution) but it can be


reviewed by two special proceedings: 1) by supplement (new constitutional
provisions), 2) by amendment (changes of existing provisions). For both the
proceedings we following steps are necessary:
1) two consecutive approvals by both houses with an interval of not less than
three months,
2)absolute majority of the members of each house upon the second vote.

For what concerns the form of government in Italy, weve three main roles:
1) President of the Republic
Hes appointed by the joint session of two Houses of the Parliament joined
also by the Region representatives.
Hes the Head of the State and he represents the unity of the nation.
He promulgates the laws as well as appoints the President of the Council
of Ministers.
Last but not least, hes the Head of the Supreme Judicial Council which is
the self governing body of the judicial power which is not a court.
2) Parliament
Therere two Houses, the Senate and the House of the Representatives
and their most important power is the law making.
3) the Government
Its in charge of the administration of the country.
The have the law making power but the laws coming from the
government are subject to the control of the Parliament.

When we talk about the Juridical Power, weve to make a distinction between
ordinary cases (i.e. damages, injuctions..) and cases against the government
(i.e. repeal of the decision).
For the ordinary cases therere three levels of ordinary jurisdiction (Tribunal,
Court of Appeals and Court of Cassation).
For the cases tried against the government, therere two levels of ordinary
jurisdiction (Regional Administrative Tribunals and Council of State).
Theres also the Constitutional Court which have the role of controlling whether
the legal system is consistent with the constitutional provisions.

Everything in Italy is managed by a complex system in which:
i.
matters on which the National Parliament shall have the exclusive power
to pass laws (article 117, 1; foreign policy; immigration; organization of
juridical power; criminal, commercial and civil law; individual status)
ii.
matters on which the National Parliament shall have the joint power with
the Regions to pass laws (article 117, 2; Note: in case of joint power, the
National Parliament shall set out the general principles while the Regions
shall determine the rules within such framework: health care, safety at
work, transportation and airports)
iii.
matters other than (i) and (ii) above, the Regions shall have general
power to pass laws (article 117, 3).

In relation to which weve just mentioned, weve to make a distinction between
the central and the federal system; in the first one the general power to pass
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laws on all matters is vested with the Parliament whereas in the federal system
such power is vested with the single states unless for matters delegated to the
federal government.

[slides:] As weve already mentioned, the power to pass law is jointly vested in
the two Houses of the Parliament pursuant to the provisions of article 70 et seq.
of the Constitution. Remember the complex system mentioned above and the fact
that in case of conflict on the power to enact laws, the Constitutional Court shall
determine the relevant competence to issue rules on certain matters.
The law-making process in Italy is the following:

1. Approval by the two Houses of the Parliament,
2. Promulgation by the President of the Republic which signs the approved
statute within a month from its approval (he can send back the statute for
re-approval but in case of re-approval, he has to sign the promulgation),
3. Publication on the Official Gazette,
4. Effectiveness (generally after 15 days after publication).

The promulgation of Law of Delegation and Legislative Decrees is governed by
two articles of the Constitution: 76 and 77, 1 . Therere two steps that have to be
followed:
Step 1: Law of Delegation, its enacted by the Parliament as an ordinary
statute granting legislative powers to the Government (not a permament
delegated power!!!). A law of delegation shall set out: 1) principles and
general criteria, 2) delegation for a limited period of time, 3) limited
subject matters.
Step 2: Legislative Decree, issued by the Government pursuant to the
delegation granted by the Parliament.

The promulgation of Law Decree and Law of Approval is governed by the article
77, 1 and 2 of the Constitution. Also in this case, were dealing with two steps:
Step 1: Law Decree is issued by the Government and in extraordinary
cases of (1) necessity and (2) urgency, its submitted to the Parliament for
approval the same day of its enactment.
Step 2: Law of Approval to be passed within 60 days as of their
publication on the Official Gazette.
In case of (i) expiration of the 60 days period without approval or (ii)failure to
approve, the law decree is repealed with effect as of the date in which it was
enacted by the Government.

Now we talk about the Civil Code.
Generally speaking, a Code is a comprehensive set of rules governing civil
matters. The first Code in the history of the world was the Code Napoleon (1804)
and its a model code for continental European legislation.
The main purpose of a Code is to provide a single, exhaustive and consistent set
of rules easy to identify, know and enforce (NOT just a collection of existing
statutes).
Since the Code is a source of law, Code provisions rank equal to the statutes and
similar provisions and, as a consequence, a subsequent law may supplement,
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amend or repeal the Code rules and as a statute, its subject to the scrutiny of the
Constitutional Court to determine whether its provisions are consistent with the
Constitution.
The fist Civil Code was written in 1865 and the Commercial Code in 1882.
The Civil Code currently in force was enacted in 1942 and the Commercial Code
is merged into the Civil Code.
Its formed by six books: 1)Persons and family, 2)Succession, 3)Ownership,
4)Obligations, 5)Labor, 6)Protection of rights.

Another source of law in the Italian legal system is International law;
1. International customary rules are part of the legal system pursuant to the
article 10 of the Constitution,
2. Bilateral and multilateral treaties shall be ratified by the Parliament.
After having signed a multilateral/bilateral convention, the Italian
Parliament shall ratify the convention in order to turn the convention
rules into statutory provisions.
3. Membership to International Organizations.
It implies that the rule of the European Union have to be respected.
In the European Union theres a clear distinction between treaties and
derivative provisions in fact treaties are still to be approved by each
member state and ratified by the single Parliaments Derivatives
provisions (regulations, directives).


European Union Sources

The sources of the European Laws are the following (and are comprised in the
Italian legal system):

1. Regulations enacted by the European Union (on matters stipulated by
the founding Treaty of the European Community, modified by the Single
European Act in 1987, the European Union Treaty of Maastricht in 1992,
the Treaty of Amsterdam in 1997, which in turn was amended by the
Treaty of Nice in 2001 and by the Treaty of Lisbon in 2007) that take
immediate and direct effect in the Member States and prevailing over
diverging statutes.
2. Directives issued by the Council of the European Union (after having
acted unanimously on a proposal from the Commission and after having
consulted the European Parliament and the Economic and Social
Committee) in order to directly affect the establishment or functioning of
the common market.
Directives are perspectives in fact they stipulate that the member states
make amendments to their respective legal systems to ensure the
harmonization of their laws, regulations and by-laws.
For what concerns Italy, the Statute n.11/2015 has amended a standing
procedure for the implementation of Community directives which states
that each year, before March 1, Parliament must be submitted a Bill
referring to the provisions for the discharge of duties pursuant to the
membership of Italy to European Community.
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The Act concerning the implementation of Community directives is


known as Community Act and it provides for the repeal or amendment of
laws n force conflicting with duties under Community membership and
delegates the government to implement a series of directives under terms
laid down by the Act itself but the government then discharges this duty
by enacting a Legislative Decree.
Successive decisions of the Court of Justice of the European Communities
and the Italian Constitutional Court have affirmed the principle that
directives not implemented in due course take immediate effect on the
Italian State when they are unconditioned, clear and reasonably precise.
It follows that the sources of Italian law are:
1) the Constitution (and Constitutional statutes)
2) the Treaty of the EC
3) Statutes of the State, of the Regions and of the Autonomous Provinces
of Trent and Bolzano (ordinary law) and other equivalent legislative
measures (Law Decrees, Legislative Decrees), the Civil Code and Codes in
general,
4) (domestic) Regulations
5) Customs
Within sources of law, a lower source may not conflict with (=rule
adversely to) a higher source.

[slides:] The principles and concepts common to the laws of the Member States
are:
Non-retroactivity of criminal law,
Principle of legality,
Protection of third parties in good faith,
Principles of subsidiarity and proportionality.
For what concerns the general principles of European Law, weve to mention:
Free movement of goods, persons, services and capital,
Mutual recognition,
Direct applicability of European Law.

The article 289 of the EU Treaty states that Ordinary legislative proceeding
consist in the joint adoption by the European Parliament and the Council of a
regulation, directive or decision on a proposal from the Commission.
The European Parliament is elected by universal suffrage by the citizens of the
Member states.
The Council of the European Union is composed by the Ministers of the
governments of the Member state. It might meet in different compositions (i.e.
the Ministers for Foreign Affaires, Economic and Finance Affaires).
The European Commission is formed by 28 members, one for each Member
state.

The law-making process has two steps:
1) Proposal by the European Commission,
2) Joint approval by the European Parliament and the Council of Ministers.

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For what concerns the European regulations the article 288, 2 states that
regulations:
1. Are addressed to all member states,
2. Take immediate and direct effect,
3. Prevail over diverging statutes.

On the other hand, directives are regulated by article 288, 3 which states that:
1. Are addressed to single/all member states,
2. Implementation in the single member states which shall have the choice
of form and methods of implementation,
3. The main purpose is to harmonize member state legislation,
4. Implementation term.
The implementation has to follow the Framework implementation
process (Statute n.11/2005).
Every year, before March 1, the Parliament must be submitted the
Community Act (which is a Law of Delegation to the Government) stating
provisions for the discharge of duties pursuant to the membership of
Italy to the European Community (= delegate the enactment, amend and
repeal of laws conflicting with the European Provisions). The
Government based on such delegation enacts the relevant Legislative
Decrees.


Repeal of laws. The principle of non-retroactivity.

Each legal system, due to its nature proper, may originate countless new legal
rules and in this situation we can deal with two different cases:
- new laws are not inconsistent with existing laws the new legal rules
expand the body of the laws,
- new laws may conflict with existing legal rules applicable to the same
matter. If the inconsistency between the old law and the new one
provides unambiguous guidance to the judges, then it must be eliminated
by eliminating the old rule (chronology determines the resolution of the
conflict).

Following art.15 of the Preliminary provisions to the Civil Code, the
situations in which the repeal of a law is necessary are:
- upon express statement of lawmakers express repeal: a supervening
law expressly states that a law or a certain provisions thereof are
repealed
- upon incompatibility between new provisions and previous ones
implicit repeal (abrogazione tacita): the new law sets out provisions
inconsistent with existing rules
- because the new law applies to the entirety of the subject-matter
subject to the previous law implicit repeal (abrogazione implicita): its
when the new law provides rules regarding the entire subject previously
regulated by the preceding law.
Another way to repeal a law is the Referendum (as it stated in the art.75
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of the constitution) and its submitted to the people upon a petition


signed by five-hundred thousand citizens or five Regional Councils.
In addition to the necessary conditions for the Referendum, the art.75
states that no referendum can be proposed for laws regarding taxation,
budget, amnesty, pardon or ratification of international treaties.

Remember that conflict between successive laws need not to be resolved
by repeal when the law does not apply to the whole of the matter
regulated by previous statutes but modifies only some points thereof,
which remain in force in their broader applications. On the other hand,
when a statute with broad and general application provides for different
solutions to issues already governed by preexisting specific legal rules,
the previous rule may remain in force.

Another way to abrogate in practice a statutory law is the obsolescence. It
consist in the fact that whenever a certain conduct which violates the law
becomes a social pattern (and its supported by the conviction that that
pattern of behavior is consistent with the legal system or when a certain
omission which comes under the law becomes a social pattern)then the
social conditions dictate that the law be not enforced on account of
obsolescence. (NB: it doesnt mean that the repeal is not recorded in the
official collection of statutory laws but its not taken into account by the
population due to social patterns).

Art.11 of the Preliminary provisions to the Civil Code states that the law
only provides for the future and this is known as the principle of non-
retroactivity of laws. In fact, a law may be declared retroactive by an
express provision to that effect or may be made expressly for that
purpose.
The only exception about the non-retroactivity of the law is made in
Criminal law, where the art.25 of Constitution and art.2 of Criminal Code
state that there is no crime where there is no law.

In the case in which transactions commenced under existing law are not
concluded by the time new law takes effect, lawmakers may provide a
series of interim provisions designed to shepherd the transaction from
one statute to another.

[slides:] The general rule regarding the effectiveness in time of a new Italian law
states that: a new law prescribes only for the future and may not govern
situations that occurred prior to its enactment prospective effect and not
retroactive effect (article 11, 1 of the Provisions on the Law in General).

Therere two special situations in which the laws can be repealed in a different
way:
1) Derogation: the general rule continues to be applicable to all cases
except in selected situations that are regulated otherwise,
2) Abrogation by referendum pursuant to article 75 of the Constitution:
- upon request by either 500,000 voters or five Regional Councils;
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- its permitted only the referendum to repeal, in whole or in part, an


existing law (or equivalent ranking values) ;
- matters in which referendum is not admitted: tax and budget laws,
amnesty and pardon laws, authorization to ratify international treaties;
- a law is repealed by referendum only if (i) the majority of the entitled
voters took part to the voted and (ii) the referendum proposal was passed
by the majority thereof.
3) Constitutional Court decision .

Talking about the effectiveness in space, weve to remember that:

- legal rules are effective within stated territory,
- statutes are effective over the entire national territory,
- regional laws are effective within the regional territory.


Relation between sources. Equality and supremacy.

The fact that we deal with different sources can give rise to conflicts between the
sources hence we need to examine the rank and the competence of the
respective sources.
if sources are different but of equal rank, hence are homogeneous (ex. A
statute and a Legislative Decree), then the possible conflict between them will be
determined using the chronology criterion.
if sources are not homogeneous, weve to use the hierarchy criterion by which
the legal rule superior in rank (and not the last made!!) prevails.

The power of juridical review

A legal rule can be defined illegitimate when theres a defect in their formation
which disqualifies them and it remains in force until it is cancelled. (NB: if a
provision is illegitimate, it doesnt mean that its void, voidable, or inexistent!)
The Constitutional Court is the sole body vested with the power of juridical
review (=power to evaluate the conformity of ordinary law and other sources of
the same rank of the Constitution). In the case of sources lower than ordinary
law, any court may assess their validity on a case-by-case basis.

[slide:] The judicial power decides the rule of law applicable to the single case
while the Parliament (or other law making bodies) passes provisions that are
general and abstract.
In the Civil law system, the judge is only bound by the law while in the Common
law system, the binding force is the one of the precedents.

Case and legal scholars

The Italian legal system makes a clear distinction between the role of lawmakers
and the role of courts. In fact the lawmakers make the laws but may not enforce
them while the courts adjudicate controversies by enforcing the law without
creating new laws.
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This separation is due to the principle of the separation of powers.


Another important thing that weve to underline is that, in Italy, courts are not
bound by legal precedents (the only which has this duty is the Corte di
Cassazione with specific reference to the case submitted).
In Italy Courts are bound by the law, but their interpretations of statutes are
influenced by the textbooks and treaties the judges composing them have read.
Parliament is an omnipotent legislative body, but in the course of their
proceedings lawmakers are inevitably permeated by the views and concepts
flowing from legal literature and by the broader social environment.

CHAPTER 2: THE ENFORCEMENT OF LEGAL RULES

A legal rule is abstract, it means that it dictates a certain conduct valid for any
number of situations.
The logical scheme underpinning the legal rule is invariable; it sets out a rule of
conduct generated by the deductive pattern if P, then Q.
A situation, or occurrence, coming under a legal rule is referred to as the base-
situation (= fattispecie). This concept is used both:
on abstract level (fattispecie astratta) when it refers to the base-
situation laid down in the legal rule (e.g. If someone inflicts wrongful
injury to others )
on a specific level (fattispecie concreta) when it refers to the relevant
facts that have to be considered as a crime since therere a base situations
(regulated by legal rules) in which the relevant facts are included

The article 2050 of the Civil Code states that if somebody causes damages to
others by doing hazardous activities , he has to refund the person injured if he
doesnt provide information regarding the fact that all possible measures in
order to avoid damages were taken. (abstract level)

Imputability

For each single occurrence, the legal rule sets out specific effects, it means that it
sets out what certain persons must or may do and define specific conducts as
lawful, compulsory or prohibited.
The relation between the situation and the definition of the conduct is
characterized by stating that a certain event brings about certain effects
imputable to the doer.

Complex base-situation

Often the base situation that brings about effects under the legal rule is complex,
in the sense that it comprises several distinct factual elements, all of which are
necessary.

For example, articles 927,928 and 929 of the Civil Code, state that the right of
ownership may be acquired by invention by the occurrence of all the following
circumstances:
1. Someone find a movable thing
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2. The finder brings it, without delay to the mayor of the place it was found
3. The mayor issues a public notice of the found item
4. A year lapses and the legitimate owner has not come to claim it.
The legal effect of the invention is that the founder acquire (he doesnt pay for
it!) the right of ownership of the movable thing.

The relevant facts forming the base-situation can occur sequentially and over a
period of time. In this case we take into account the article 922 of the Civil Code
which states that ownership can be transferred by contract.
The seller and the buyer may agree to subject the effects of the contract to a
contingent condition.

To ensure that a given case fills in the contours delineated by the base-situation
envisaged by the law, a court must interpret not only the language and wording
of the law, but also the material facts of the case and the point of law to be
applied.

Statutes. Rules and Provisions.

The meaning of a legislative Act depends among others on the meaning
words take on in everyday conversation, the use of lawmakers make of them,
and the changing social background where the rule is to be applied.

The operation by which a certain legal rule takes on meaning is called
interpretation.

Also, if the rule is considered as prescribing a certain conduct, the legislative Act
cannot be considered as providing itself a clear, immediate and exhaustive
description of the conduct to be applied in the case at issue.

Sometimes the conduct prescribed by the rule must be inferred form a number
of different provisions (ex. Article 2043 CC: any deliberate or culpable act that
causes unjust damage to others obliges the person who committed the act to
compensate the damage but the rules regarding how to compute the amount to
be compensated are written in the article 2056 of the Civil Code which refers to
articles 1223, 1226 and 1227).

Therere also provisions that do not require any manner of conduct but define
the requisites for the adoption of any number of conducts. (ex. Article 1470 CC
defines what a contract of sale is by stating the requisites from which many rules
will ensue).

Articles and paragraphs

In the Italian legal system, the base unit of an Act is the article, identified by
ascending number. Each article is sub-divided in paragraphs.

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When were dealing with a statute and its vast, lawmakers collect the sections in
groupings and subgroupings. (ex. Books of the CC, divided in Titles, in turn
divided in Sections).

Lastly, articles may be preceded by a heading and a sub-head that summarizes
the contents of the article.

The interpretation of statutes

The interpretation of the law consists in seeking the meaning of provisions;
seeking the meaning refers to the different senses which the text takes on as
attributes:
Whitin the bounds of what is consistent with the text interpreted
According to non-arbitrary criteria and subject to the dictates of reason.

Theoretical and legal rules of interpretation

In order to define the criteria applying to interpretation, weve to make a first
distinction:
1. The rules of interpretation have been defined over time.
2. The Italian Legal System, like other codified legal systems, has a
legislative provision (article 12 of the preliminary provisions to the CC)
that expressly provides guidance in the interpretation of laws.

Words and context.

Literal interpretation.
Interpretation must focus on the meaning a word may have in the specific
context. (rule known as literal interpretation and stated in article 12 of the
preliminary provisions to the CC)

Teleological interpretation.
The interpretation of the law should be directed to ascertaining whether such
words are consistent with the aim of the legal rule itself (rule known as
teleological interpretation stated in article 12 of the preliminary provisions to
the CC).

Interpretation and the legal system

Systematic interpretation
Another rule which provides stability of interpretation is based on the concept
that the parts are consistent with the whole. (ex. Article 22 CC states that
majority is fixed at the age of 18 so any provisions refers to minors or to
minors of age with no further specifications will be constructed to refer to
minors od 18)

Analogy
There may be cases when a court is confronted with facts for which no
provisions or rules seem applicable.
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Theres a basic assumption stating that any case arising falls within the bounds
of the legal system and may be resolved by it so if a case does not correspond to
any base-situation envisaged by law, then the court must look for cases that are
similar or analogous.
Here arise another difficulty regarding the determination of the similarity
between the base situation provided for by the rule to be applied by analogy the
case to be ruled.

CHAPTER 3: LEGAL FACTS AND ACTS

A legal fact is any fact to which a legal rule applies, ascribing a certain legal
effect to it, it doesnt depend on an human will. (ex. The birth is a legal fact.)
The difference between facts and acts is that facts are occurrences or happenings
proper while acts are motions directed by the mind.

Legal acts are manifestations of the human will that produce correlative rights
and duties.

Legal acts have to be divided between human acts and legal acts; in the first
case, the legal effect associated with a certain event occurs regardless of the
intent of the person adopting a certain behavior to produce it.
Hence a distinction has to be drawn between the intent of a person to adopt a
specific conduct (human acts) and their intent to produce certain effects (legal
acts).

Acts are attributed to the persons who committed them. To that extent, people
are responsible for their actions.
Acts may be:
- lawful when a legal rule provides for legal effects of a certain permitted
conduct;

- unlawful when it is in breach of a legal rule or of a principle of the legal
system and, consequently, falls subject to sanctions.
To assess the unlawfulness of an action, the court must compare the
conduct ascertained as fact with the rule that forbids it, so as to assess
whether such conduct does violate the rule. The conduct examined shall
only be contrary to the law if it is grievous to the interests protected by
the law. So, in order to ascertain the unlawfulness of a specific conduct,
its necessary to first ascertain whether that specific conduct is grievous
to the interests protected by the rule.
Therere different types of unlawful acts, depending on the nature of the
legal rule violated, the class of interest aggrieved and the category of
sanction to be applied.

criminal wrongs all conducts injurious to a value, the custody of
which is in the public interest, and therefore exposes the perpetrator to
criminal sanctions;
administrative wrongs conducts which violate rules established in
the general interest of the community, the satisfaction of which is
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entrusted to Public Administration;


civil wrongs are conducts which: 1)are directly grievous to a
particular interest protected by the law, 2) cause wrongful damages to the
aggrieved party.
Civil wrongs entail civil liability (= the duty to compensate for damages
inflicted).

Non-contractual and contractual wrongs

The abovementioned wrongs can be divided into:
contractual wrongs art.1218 CC in this case the law provides for
misconduct occurring outside the bounds of any already existing
relationship.
non-contractual wrongs art. 2043 CC introduces the vast area of
unlawful facts , covering any deliberate or culpable act that causes
unjust damage to others and obliging the wrongdoer to compensate for
the damage. in this case the law provides for misconduct occurring
outside the bounds of any already existing relationship.

The concept of act in the Civil Code

In the Civil Code, the word act may take different meanings depending on the
context:

behavior, acting, or practice art.2598, acts constituting unfair
competition
capacity to act art.2
acts requiring the age of majority (hence requiring the capacity of act
people are aware of the legal implications of the act theyre computing)
art. 1425 contracts, art.591 wills, art.84 marriage, art. 250
acknowledgment of paternity, art.2737 taking of a juridical oath

Written acts

Whenever the terms of a legal act are articulated in a written document, this
document is known as act in the Italian legal system.
Acts are also all the written documents relevant to legal proceedings. (ex. Writ
of summons is an act atto di citazione, all the documents drafted by lawyers
and judges in the course of litigation atti del giudizio)

Validity and effectiveness of legal acts

In order to compare the base-situation laid down by the law and the model
envisaged by the law (that is when a specific act or case comes under the law),
the art.2043 CC states that its necessary to establish that the fact:

was either deliberate or culpable;
was committed by a person who had the capacity of understanding and
intending (art.2047, imputability);
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caused directly and immediately (causation);


unjust damage (wrongfulness) to a third person.


For what concerns the validity of contracts, the situation is a bit more complex in
fact in the art. 1325 are enumerate the essential elements necessary to have a
valid contract under Italian law:

an agreement between parties, which implies that the parties of the
contract are vested with the legal capacity to act,
a subject-matter which must be possible, lawful, determined or
determinable,
a causa, the socio-economic function of the contract which must be lawful
(art.1343)
a form, when specifically requested by the law for the validity of the
contract.

Pursuant to art.1372 CC, a contract has the force of law between the parties
and, in this case, contractual rules are a form of private legislation.

We can deal with contracts that are valid but ineffective because they will be
effective from a certain future point in time or the effectiveness shall be subject ti
a specific, future and uncertain event.
On the other hand, we can an invalid contract and it means that the contract does
not meet all the requisites of the law or its defective in one of its element.
Acts laying in the area of private autonomy may be affected by two different
types of invalidity:

o voidability or annulment
When the contract contains a flaw which is not so relevant as to make it
void (= when it falls short of one of the cardinal requisites under the law
or when its unlawful)

o nullity
it makes the act unsuitable to generate the intended legal effects.

Void contracts do not have legal effects, whilist voidable contracts are legally
binding and enforceable until they are annulled by a Court decision, upon
request of the interested party.

CHAPTER 4: PERSONS

Society is composed of individuals who pursue, singly or collectively (= entities),
different aims and interests.
Individuals (natural persons) as well as collective entities (legal persons)
enjoy the legal status of person.
The expression legal person is referred to by lawmakers to designate a variety
of entities for which the Civil Code and other legal texts lay down the rules.

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Natural persons and legal persons are understood to be the subjects of law as the
bearers of both rights and duties and are both referred to as persons. As such
they are:
vested with rights and duties,
acting within the legal system (since their acts and facts may generate
legal effects within the legal system).

Under art.1 of the CC, a natural person acquire legal capacity at birth but capacity
to act at the age of 18 (art.2).

The identification of a natural person is closely connected to the location of their
domicile (defined under art.43, paragraph 1, the place where the person has
established the principal center of their businesses and interests) and of their
residence (art.43, paragraph 2, the place where the person have their habitual
abode- the word abode is undefined but it refers to the home occupied for an
undetermined period of time).

When persons reach full age of 18 years, individual acquire the capacity to act
(=capacity to exercise their rights and duties in their own name and in their own
interest) but therere two restrictions to this general principles:
1. persons who are habitually impaired in their mental ability to make
decisions may be fully or partly deprived of their legal capacity to act
(interdiction or disability persons subjected to one of the two are
defined as legally incapable to act)
2. remedies are available for those cases in which a person, temporarily
lacking sufficient mental ability to make decisions, enters into legal
transactions (de facto incapacity or natural incapacity art.428 CC
natural incapacity is a cause for the annulment of any legal act performed
if: 1)the natural incapacity existed at the time the legal act was
performed, 2)in the case of unilateral act, the act is seriously prejudicial to
the person who did not have the capacity to understand and intend, 3) in
the case of a contract, the other party was in bad faith).

In case a person committed an act causing injury to another when they were
incapable of understanding or intending, they are not liable to compensate for
damage caused unless the state of incapacity was caused by their own fault.
(art.2043)

Minors and parental rights

Parental rights encompass a series of rights and duties in and towards the child
hence theyve:
a right and a duty to care and to educate their child (art.30 of the
Constitution)
the right and duty to represent the child in all civil act (art. 320 CC)
the right and duty to administer the childs property (art.320 CC).

Legal entities

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Grouping of persons established for a specific purpose and in pursuance of


specific interests, are called collective entities and are held separate and distinct
from the individuals that compose them.
Under the Italian legal system , only some legal collective entities enjoy the
separation between the assets and the liabilities of the members/shareholders.
(ex. A non-registered association is not a legal entity, while registered
associations, foundations and stock companies are legal entities).

CHAPTER 5: THE CONCEPT OF THING

Art.810 CC states that things that can form the subject matter of rights are
property.
In this sense, thing refers to the objects of rights and not to the right of
ownership.

Now we analyze the different elements that compose the definition of property:

Thing
According to the above mentioned article, a thing is whatever is
empirically verifiable and quantifiable.
Thing that can be the subject matter of rights
Not any thing is the subject matter of rights and it follows that a thing that
cannot form the subject matter of rights is not a thing according to the
above mentioned article.

Relations between things


Appurtenance


Art.817 CC defines the relation of appurtenance between things by stating

that secondary things are appurtenance things destined permanently to

the service or ornament of other things, known as principal things.

The destination must be decided by the owner of the principal thing.


As explained under art.818 and 819 CC, any transaction concerning a

principal thing is inclusive of its appurtenances, unless the transaction

expressly provides differently.

Compound

A compound thing is a thing in which all the components are essential for
the integrity (identity) of the thing itself.

Categories of things

Replaceable
Irreplaceable

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The determination of a thing as replaceable and irreplaceable depends on the


perception of the thing itself the parties involved have or have not.


Consumable
Non-consumable (the comodato, art.1803 CC, is restricted to non-
consumable things)

The human body

The rules concerning the human body are stated in the art.55 CC , the acts of
disposition of the own body of a person are forbidden if they result in permanent
impairment of physical integrity or when they violate mandatory rules, public
policies or morals.
However a person is the owner of the detached parts of their own bodies (it
means that a person can sell his/her hair) except for blood that cannot be sold
for money, it can solely be donated (statute n.107/1990).

Beyond things

A thing may be intangible, in fact the achievements of creative intellectual
activities (scientific, artistic, literary, art.2575 CC) may be subject to copyright,
while innovations may be subject to patent rights (art.2584 CC).

But in order to be more precise, weve to say that the concept of thing may be
delineated by two complementary definitions:
1. According to art. 810 CC, a thing is any utility that may be subject to rights
(corresponding to the italian concept of bene),
2. According to art. 813 CC, a thing is any right that has an economic utility
as its subject (corresponding to the concept of property, Italian
patrimonio),
3. Property is any interest protected by law (more legal definition).

Movable and immovable property

Under art.812 CC, things fall into two principal categories:
Immovable things the soil, water sources and water courses,
buildings and other constructions, even if joined to the soil for a
temporary purpose, and in general everything that is artificially or
naturally annexed to the soil is an immovable thing.
Movable things (art.812, paragraph 3) all other things are
(considered) movable

The distinction between the two categories is extremely important because the
legal rules aimed at regulating, ascertaining and transferrings of rights on
movables and immovables are quite different.
For what concerns the movables, rapidity and simplicity prevails; while in the
case of immmovables, the law stipulates that the written form is required, under
penalty of nullity, for the transfer of the right of ownership and for the creation
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and transfer of property interests (art.1350 CC) (and publicity, art.2643, is


necessary in order to make the right transferred).


Universality of movables

A universality of movables (art.816 CC) is defined as a plurality of things that
belongs to the same person and have a common destination.

Universality of thing is not the same of universality of movables (for example a
business is often considered as a universality of things but it cannot be
considered as a universality of movables because therere also immovables by
which a business is composed of).

The estate of deceased (eredit) is defined as a universality of things by
operation of law.
On the other hand, the assets and liabilities of a living person are not considered
as a universality; theyre viewed as a whole in the case in which its necessary to
ascertain the extent of liability in case of debt or insolvency (art.2740 CC).

Fruits

According to articles 820 and 821, fruits are distinguished into:

Natural fruits which derive directly from the thing, with or without the
aid of man natural fruits are, for a certain period of time, integral parts
of the main thing, from which they are then separated and acquire an
identity of their own.
Civil fruits are the compensation (in money or other form) received by a
person from another for the enjoyment of a thing.

Public and private things

Art. 42 of the Constitution states that ownership is either public or private.
Economic things belong to the State, to institutions or to private parties.

Public things (art.822 CC) must be owned by the state or by other public
institutions and destined for public utility or for public service.
Private things may also have public utility and the duties and the rights of the
owners of private things with public utility are stated in the art.839 CC.

CHAPTER 6: PROTECTION OF RIGHTS

Protection of rights

Protection of rights is the name of the sixth book of the CC and it refers to a
vast range of instruments aimed at protecting and enforcing legal rights and
interests.

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The law provides for a series of substantive protection instruments of rights,


such as registration, statute of limitations and expiration.

Public records

Lawmakers must ensure the certainty of legal situations hence legal facts and
acts must be publicized in order to ensure their legal knowledge.
It follows that publication is necessary for two reasons:
1. To make public a certain act or fact ,
2. To inform third persons that a transaction has been concluded and in
order to make indisputable such transaction, it has to be registered in the
Land Register.
The same rule has to be applied to certain corporate acts that have to be
registered in the Companies Register (art. 2188,2296,2298,2300 CC).
3. For the validity of certain acts, publication is the very requisite for their
legal effectiveness.

The form of registration of the legal acts and facts vary according to their nature
even if theyve the common purpose of entrenching the rights and duties created
in order to prevent the arising and to facilitate the resolution of disputes.

Proof and evidence

Under private law, the parties involved in a dispute must move for the
enforcement of their own rights hence its up to private parties to initiate legal
actions against one another. In this situation, some of the facts relevant to the
resolution of the dispute may remain uncertain, as evidence of their certainty has
not been provided by the interested party. To solve this situation, article 2697 CC
states that: one who wants to assert a right in judicial proceedings bears the
burden to prove the facts upon which the right is based, while one who asserts
the invalidity of such facts, or claims that the rights has been modified or
extinguished, must prove the facts on which the defense is based. principle of
the allocation of the burden of proof.

To sum up:
The plaintiff has to prove the facts upon which their rights are based
The defendant has to prove the facts that extinguish or limit the rights
asserted by the plaintiff.

Evidence

The elements of proof used for the establishment of a fact in truth are called
evidence.
In civil procedure, the evidence gathered for the establishment of the occurrence
of a fact covers a vast diversity of elements;
Documentary evidence first category which encompasses any
document in material form that may hold and preserve some record of
the occurrence of a certain fact or an act, and may include any written
document, film, registered tape, computer data related to the act or fact.
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all the documents bearing a signature which has been authenticated by


a notary public or a civil servant vested with such authority are legal
evidence, it means that the court must hold as truthful the act or the fact
stated therein.
The fact that the court must hold these documents are truthful doesnt
necessarily mean that their content is true since a notary public or a civil
servant cannot and doesnt have to verify whether the statement
declared is truthful or not, they just have to record the statement.
Furthermore, any of these pieces of evidence is held as truthful unless the
other party against which theyre filed brigs an action claiming that
evidence is fabricated (art.221-227 Code of Civil Procedure, CCP)
the valuation of private documents (documents bearing a non-
authenticated signature) and declaration by Witnesses are left to the
discretion of the court.

Proof by Witnesses its another cardinal form of evidence since it
comes from a person who has direct knowledge of the facts at issue in the
course of examination by the court. It is not legal evidence!
The court has the discretionary power to decide on the admissibility of
the proof by Witnesses.
There are several rules in the Civil Code that limit the admissibility of the
proof by witnesses in disputes concerning contractual relationships.
Examples of limitations:
- some contracts, such as settlement agreements (art.1967 CC) and
insurance contracts (art.1888 CC) must be proved in writing (hence they
are subject to written evidence)
- the loss or destruction without fault of the document which provided
the evidence render proof by witnesses admissible (art. 2725 CC)
- non-admissibility of the proof by witnesses may also apply to cases
where parties to a contract have expressly agreed that, in case of a
dispute arising, only written evidence shall be admissible (art.2725 CC)
- it is admissible also in disputes over international contracts for the sale
of goods (art. 11 of the Vienna Convention of 11 April 1980, ratified by
Italy with Statute n.765/1985, and effective since 1. January 1987)

Presumptions

A presumption is an inference which the law or the court draws from known
fact to arrive at a fact which is not known. It helps the court in the establishment
of a fact in truth.
Presumptions are a form of evidence itself, as they contribute to the process by
which a court freely finds a case.
As we said before, presumption are inference and for this reason courts are
requested to act with prudence and to only admit mere presumptions when
they are material, precise and consistent (art. 2729 CC)

Legal presumption are such as derive from the law a technical or artificial,
operation and effect, beyond their mere natural tendency to produce belief, and
operate uniformly, without applying the process of reasoning on which they are
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founded, to the circumstances of the particular case. Hence no contrary evidence


is possible against legal presumptions, unless such contrary evidence is
permitted by the law itself.

If no contrary evidence is admissible, presumptions are known as absolute
(presumption iuris et de de iure).
On the other hand, if contrary evidence is admissible, then a presumption is said
to be relative. (in this case were dealing with a situation in which the law
presumes that a certain fact occurred but it is for the person at issue to prove the
contrary).

Confession

Confession is the declaration made by one party stating the truth of facts
unfavorable to them and favorable to the other party (art. 2730 CC)

Judicial Oaths

Oath is used when available evidence is insufficient to establish the fact and its
known as decisory (art.2736 CC) as it brings the partial or final resolution of
the case.
A party cannot be charged with, nor can they refer back, an oath for the decision
of act or concerning rights which cannot be disposed of by the parties, or an
unlawful act, or concerning a contract for whose validity a written form is
required, or for the purpose of denying a fact which a public act shows to have
occurred in the presence of the public officer or civil servant who drew up the
act.
An oath is a legal evidence and if one party has taken an oath, the other party is
not allowed to prove the contrary, nor can the other party demand revocation of
the judgment if perjury has been established (art.2738 CC).
Remember also that a statement under oath willfully declaring a falsehood is a
crime.


CHAPTER 7: SITUTATIONS UNDER THE LAW AND PRESCRIPTION

Prescription

All rights are extinguished by way of limitation whenever the person holding
the right falls to exercise them within the time fixed by law (art.2934 CC)
The statute of limitations is also known as prescription.

Under article 2937,CC the renunciation of prescription is admissible when its
already run out and not before and when a fact proves incompatible with
someones intention to be subjected to the prescription.

Under article 2938, CC the judge cannot automatically raise the prescription if
theres not an explicit request by the interested party. (=Il giudice non pu
rilevare dufficio la prescrizione non opposta )
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Be careful to the fact that if a person who spontaneously paid a debt after the
date in which the debt was prescribed, cannot ask his money back. (art.2949, CC)
(ex. If Ive to give you some money before the 10th of June and I give them to you
the 11th , since its a spontaneous act, I cannot call you and say hei man, I want
my money back because the debt was prescribed )

Prescription is not applicable to all rights and the rights excluded form
prescription are stated in the art.2934, paragraph 2, and are the following:

a) Non-disposable rights, such as personal rights related to marital and
family status and certain rights vested in the individual (physical
integrity, honor, name, etc);
b) Other rights specified by the law, like the right to claim that a contract is
null and void.

The prescription is subject to the following rules:

- Running of the prescription.

The prescription begins running from the day on which the right can be

enforced. (art. 2935, CC)

- Suspension.

Articles 2941 and 2942, CC provide some cases in which the prescription

is temporally suspended. (ex. Between spouses, between the guardian

and the minor)

- Interruption.

From the moment an action is brought for redress by the holder of a right,

prescription is interrupted (art. 2943, CC).

Under article 2945, CC, after the interruption, the prescription starts

again (difference with the suspension).

- Duration.

The prescription period established by the law is 10 years, exceptions are

made for specific cases (art. 2946, CC).


Brief prescriptions is applicable to a variety of cases stated in the articles

starting from the 2947 of the CC:


the right of compensation for damages arising from an illegal fact
is prescribed in 5 years;
the right of compensation for damages arising from the circulation
of vehicles of any kind is prescribed in 2 years;
Remember that if the illegal act has a statute of limitations longer
that the abovementioned ones, weve to take into consideration
the longer one.

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for what concerns insurance, the right to the payment of premium


installments is prescribed in one year from the maturity of each
installment (art. 2952, CC)
when the time limit for a sentence to be presented in front of a
judge passes, the prescription period regarding the rights taken
into consideration is of 10 years. (art.2953, CC)


If we talk about presumptive prescription, were dealing with situations in which
the parties are bounded orally rather than in writing. In this case, the
prescription periods range between six months and three years.
Under this situation, the party against whom prescription has been asserted can
charge the other party with an oath to ascertain whether extinguishment of the
debt has occurred.

Forfeiture. Lapse of time.

Forfeiture is the lapse of a right caused by failure to observe the time limit
within which the law (or a contractual provision) lays down that it must be
exercised.

Rights and Remedies. Standing to sue.

In many legal systems belonging to the Civil Law tradition, saying that a person
has a right means that certain written provisions grant that person powers and
privileges.
The law also provides for the possibility for a person to claim the enforcement of
a right in a law court and an action is the act of referring a dispute to a court
called upon to find for or against the person bringing the claim.
Obviously therere some rules that must be followed to bring a dispute to a court
and, for example, article 100 of the Code of Civil Procedure states that to bring
action in a court of law, its necessary to have an interest there in.
Be careful to the fact that not any interest may be referred to a court for
adjudication but only interests placed under the protection of the law.

Qualified interests, collective interests.

The legal relation between the interest and the standing to sue (= being in a
position to bring an action) raises controversial issues with respect to the means
of juridical protection of collective interests, or diffuse interests (interests of a
collectivity of persons).
An example of the protection of collective interests is provided by the
Antitrust Act which states that anyone who has interest therein, inclusive of
representative associations of consumers, may bring to the knowledge of the
Supervising Authority the elements necessary for the investigation destined to
ascertain the infractions to Antitrust laws.


Elements of civil procedures

The Italian system of court has two distinct categories:
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Ordinary jurisdiction
Its administered by career courts who have competence for civil and
criminal matters but the two procedural rules are different.
The procedural rules governing judicial actions for civil matters are
mostly comprised in the Code of Civil Procedure.

Special jurisdiction


Legal action

In a civil trial, the parties involved are known as:

the Plaintiff the person who initiates legal action, seeks to obtain a
judgment in his favor;
the Defendant.

The defendant may also find a counter-claim to be served to the plaintiff.

Once legal action is brought by a plaintiff, the task of the court is first and
foremost to examine the merits of the case, it means that the court has to
ascertain whether there is a ground to the claim put in by the plaintiff. (= the
court has to verify that a question of law is involved)
As a second step, the court must determine the law that applies to the case at
issue and the application of any legal provision necessarily involves its
interpretation by the court.

Appeal and recourse to the Corte di Cassazione

In Italy, the court of first instance are the Tribunal for the civil disputes, while
the Justice of Peace is involved in disputes for limited economic value.

If one of the party is unsatisfied or not fully satisfied with the decision taken by
the court, it has the right to appeal the judgment to an higher court, the Court of
Appeal, in the hope of obtaining a modification or even a reversal of the first
decision.

If the parties are unsatisfied with the decision of the Court of Appeal, they have
the right to have recourse to the Corte di Cassazione, which is the court of last
resort in civil and criminals matters and which may order a retrial only if it finds
defects in the way the appellate trial was conducted or other flaws related to the
wrong application or interpretation of legal provisions.

The competence of the various courts are defined in the Code of Civil Procedure.

Enforcement of judgments and other coercive proceedings

When the competent court adjudicates the rights in dispute, it does so by issuing
a sentence, which is a written document whose aim is to ensure the enforcement
of the judgment through coercive proceedings.
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Documents allowing for commencement of coercive proceedings are:
a) juridical sentences,
b) injunctive orders,
c) bills of exchange,
d) public acts.

Arbitration

The arbitration is a form of alternative dispute resolution outside the court. It is
a proceeding in which a dispute is resolved by an impartial adjudicator whose
decision the parties to the dispute have agreed, or legislation has decreed, will be
final and binding. There are limited rights of review and appeal of arbitration
awards. The arbitration award has the effects of a juridical sentence as soon as it
is declared enforceable by the Tribunal.

The arbitrator is a person who conducts an arbitration and hes called upon to
decide a dispute in observance of the rules laid down by the parties. His role is
not to resolve a controversy but to fill the gaps in the private agreements.

CHAPTER 8: THE CONSTITUTION AN ORDINARY LAW

Introduction

The Italian Constitution of 1948 provides guidance for and directs conduct in
societal life. Its divided as follow:

o art.1-12 statement of fundamental principles
o art.13-28 rights and duties of citizens as regards civil relations
o art.29-34 ethical and social relations
o art.35-47 economic relations
o art. 48-54 political relations

The economic constitution

The Italian Constitution was the fruit of a compromise between different political
forces united by the same ardor to re-found the State after World War II.
As a consequence, the Constitution shows inconsistencies and contradictions in
some of its parts that reflect the intense political horse-trading that presided
over its drafting. An clear example of what weve just said is the article 41 of the
Constitution which proclaims that economic initiative is free and goes on to
explain that its up to the persons who originate such initiatives.
The second paragraph of the article adds that economic freedom is not
unlimited, in fact it may not come into conflict with public interest, or be
exercised in a way which infringes upon the safety, freedom and dignity of
persons.
The third paragraph steps in to declare that the law prescribes programs and
controls expedient to direct and co-ordinate public and private economic
activities towards social ends.
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To sum up this article, we can say that the State commands the economy since
its not only the one who sets the rules of the game, but also the key player in it
and the referee.

Private ownership

Private ownership is recognized and guaranteed by the law, which provides
for the forms of its acquisition, its enjoyment and its limitations, in order to
ensure its social purpose and its accessibility to all. (art.42 of the Constitution)
As you can notice by reading the article, it doesnt expressly qualify the right of
ownership as an inviolable or fundamental right hence the text leaves ample
room for maneuvers to lawmakers.

CHAPTER 9: THE RIGHT OF OWNERSHIP AND PROPERTY INTERESTS

The right of ownership

The third book of the Civil Code is entirely dedicated to the Law of Property and
in the art. 832, the right of ownership is defined as follows: the owner has the
right to enjoy and dispose of things fully and exclusively, within the limits of and
observing the obligations established by law.

Diversity of Ownership

Ownership is a many-faceted concept.
The intrinsic value of the thing owned only accounts in some degree for the
diversity of powers and capacities vested in owners, depending on the nature of
the thing owned. In addition to this, the identity of the owner themselves
contributes to the definition of their powers and capacities.
Things may be also owned by a legal person, that is an entity separate and
distinct from the single individuals that compose it. (ex. The stockholder is the
owner of the stocks of the company but not of the individual things)

The right of ownership in the Civil Code

As we can notice by reading the article 832, the key words of the definition of
ownership are enjoyment, disposition, full and exclusive.
Enjoyment refers to any manner by which to extract any utility from the thing,
either directly, by collecting the natural fruits yielded by the thing, or by
collecting the dues paid by some other person to whom enjoyment of the thing
has been granted (civil fruits).
Disposition is a word that lies open to some ambiguity in fact to have a
disposition of the thing just means to decide and actuate material operations on
the thing, that is, destine it to a certain use or transform it.
Having legal disposition of a thing , which is the meaning with which we deal in
this situation, means that an owner has free disposition of the thing owned (=the
owner is free to modify the legal status of the thing).

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The only clear restriction is stated in art.833 CC, with reference to the so-called
emulative acts, which declares that the owner cannot perform acts that have no
other purpose than harming or causing annoyance to others. In order to exclude
the existence of an emulative act, its sufficient that the owner obtain minimal
utility.
The right of ownership is not subject to any limitation in time hence its
perpetual.

Land Ownership

The greater part of laws and statutes related to the right of ownership rule
ownership in land. Article 825, CC states that land ownership is subject to
specific rules for the attainment of public interest purposes and refers to both
special laws and to the provisions contained in the Civil Code.

Theres no clear line drawn between private interests and community interests
hence provisions designed to protect private interest in effect also pursue
community interests and conversely.
For this reason, one areas of land law is concerned with the rights and duties
guiding relations between neighbors, whilst another area is concerned with
urban planning and rural property.

As its stated in the article 840, CC the rights vested in land ownership extend to
the subsurface, with all that is contained therein and to the space above the
ground. The article states that the owner of the land cannot oppose the activities
of third persons that take place at such depth in the subsurface or at such height
in the space above because the subspace and the space above the land is not
owned by the land owner since theyre public. (ex. If you own a land, you cannot
prevent an aircraft from flying above your land)
Hence if the land owner or a third person obtained a license form the State, he
can consider himself as the owner of the subsurface and he can do what he wants
there.

The modes of acquisition of the right of ownership are laid down in art.922 CC;
in the vast majority of cases, the acquisition of the right of ownership is the
entering into a contract (typically and in most cases a sale) or succession.
Contract and succession are modes of acquisition of the right of ownership (and
of property interests) by derivative title hence the transferee acquires the same
right previously lodged in the transferor.

Property interests

Property interests have either the purpose of enjoyment or the purpose of
security and they are: superficie, emphyteusis, use, habitation and predial
servitudes.
Property interests pursuing the purpose of enjoyment grant to the person
entitled specific, through limited (as compared to ownership), rights to enjoy
the thing.

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Usufruct

Usufruct is a property interest. The usufructuary has the right to enjoy the
thing (owned by someone else), but must respect its economic destination.
The right of usufruct granted to natural persons is either for a limited time, if a
corresponding agreement has been entered into or until death.
Usufruct is the right to use the thing, and as its stated in art. 981 CC, the
usufructuary has the right to enjoy the thing, but must respect its economic
destination.
The usufructuary can assign their right for a certain time or for its entire
duration, provided that its not forbidden by the constitutive transaction
(art.980,CC)
As its stated in the article 981, CC, the right of usufruct is subject to one single
limitation: the usufructuary must abide by the economic destination of the thing.

Aside from the duty to return the thing upon the expiration date, the
usufructuary is under duty to:

apply the diligence of a good pater familias in the enjoyment of the thing
(art.1001, CC)
draft an inventory at their expense and give suitable security (art.1002,
CC)
pay expenses related to the custody, management, and maintenance of
the thing (the owner is in charge of paying extraordinary repairs if the
ordinary maintenance done by the usufructuary will not be sufficient)
pay taxes and any other burden related to revenues from the thing (the
owner pays for taxes related to the ownership of the thing).

Use and habitation are different from usufruct; in fact the right of use entitles
its holder to make use of the thing and if its productive, to collect the fruits
exclusively to the extent necessary for their family and their familys needs while
one who has the right of habitation of an house can inhabit it within the limits of
theirs family and their familys needs (art.1022 CC).

Predial servitudes

Relations between owners of adjacent pieces of land are subject to certain rights
and duties, among them a fundamental role is played by predial servitudes.
A predial servitude consists of a burden imposed on land for the utility of the
other land belonging to a different owner (art. 1027, CC).
Legal scholars made a distinction between:
dominant land the piece of land which benefits from the establishment
of a servitude
servient land the land subject to the servitude.

As art.1030 CC states, its not a duty of servient lands owner to do any act to
make possible the exercise of the servitude by the owner of the dominant land.

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Predial servitudes can be compulsorily and voluntarily constituted; in fact they


can be constituted by usucaption or by destination by the head of the family.
When, by force of law, the owner of land has the right to obtain the constitution
of a servitude from the owner of other land, the servitude, in absence of contract,
is constituted by a judgment. The judgment establishes the conditions of the
servitude and determines the indemnity due to the owner of the servient land.

The Civil Code provides compulsory servitudes:
for the passage of water of any kind (art.1033, CC) or for the removal of
surplus water, if the neighboring piece of land lacks the water necessary
for the maintenance of people or animal or for other domestic uses
(art.1049, CC)
where a piece of land is surrounded by others land, and does not have
access to the public way, and its owners cannot acquire it without
excessive expenditure or inconvenience (art.1051, CC); similar provisions
apply for electric lines and for funiculars: every landowner is bound to
give a right of way through their land to electric lines (art.1056, CC) and
to allow the cables of aerial funiculars to pass over their land (art. 1057,
CC).

Servitudes terminate by way of:

o confusion the ownership of the dominant and of the serviant land are
united in only one person (art.1072, CC)
o limitation the servitude is not exercised for a continued period of 20
years. (art.1074, CC)

Common Ownership

Common ownership may be:
voluntary e.g. two or more people buy something together
incidental e.g. land is bequeathed to heirs
forced e.g. owner of different floors of a building have common
ownership of the land on which the building stands, the foundations, the
bearing walls.

An example of common ownership is given by the case of marriage; in fact unless
the spouses have opted for division of property in common ownership (art.194,
CC) or have entered into a marriage agreement proving otherwise (art.162, CC),
household things acquired by each spouse separately become common property
after the marriage.

In the article 1111, CC is said that each participant of a common ownership can
always demand a dissolution of common ownership and an agreement to remain
in common ownership for a period of no more than ten years is valid and is also
enforceable against the successors of the participants.

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The rules on dissolution of joint ownership do not apply to the commonly owned
parts of the building, unless partition can take place without making the use of
the thing less convenient for any member (art.1119, CC)

CHAPTER 10: POSSESSION

The concept of possession

Under the article 1140 of the Civil Code, possession is defined as the power
over a thing as is expressed in an activity corresponding to the exercise of the
right of ownership or property interest.
As we can deduct from the definition, the dominant feature of possession is an
activity that is a conduct. It means that if someone behaves as if they were the
owner, or were vested with a property interest, than they possess the right of
ownership or the property interest; it follows that possession not only refers to
the exercise of the right of ownership but also to the exercise of any property
interest.
The important part of the article concerns the fact that a person acts with respect
to the thing as an owner or the holder of a property interest would. In order to
act so, the possessor doesnt have to hold the thing physically in fact the second
paragraph of article 1140, states that one can possess directly or by means of
another person who has retention (detenzione) of the thing.
At this point weve to make a distinction between:
the possessor
He behaves as if hes the owner or the holder of a property interest
the retainer
He has physical availability of the thing and behaves in a way which is
incompatible with the right of ownership or the holding of a property
interest. (ex. The payment of the rent to the possessor/owner)

From the definition of possessor we can understand that there may be situation
in which the possessor can coincide or not with the owner.


Relevance of possession: acquisition ownership and property interests

The fact that there isnt always a coincidence between the possessor and the
owner gives rise to the some problems;

transfer of movables by somebody who acts as the owner (but hes not!)
possession vaut titre rule
regulated by article 1153, CC
three requirements must be met:
1) good faith the person to whom the movable is provided is not aware
that they injure the right of another person
2) an appropriate title the parties entered into a contract that
transfers the right of ownership
3)possession the possession has been transferred.

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The possession vaut titre rule permits the circulation of wealth.


As its stated in article 1156, CC the above-mentioned rule does not apply
to registered movables. In fact in this case, the prospective buyer has to
consult the relevant public registries to ascertain whether the possessor
is or is not the lawful owner.
Usucaption (art. 1158, ff, CC)
It consists in the acquisition of the right of ownership due to continued
and uninterrupted possession over time (= at least 20 years) on any
physical thing (movable or immovable)
To what concerns movables, usucaption leads to the acquisition of the
right of ownership when the above-mentioned art.1153 is not applicable
because of possessors lack of good faith and/or of an appropriate title.
Art.1163, CC says that the right of possession acquired by usucaption is
not valid if it has been acquired in a violent or clandestine manner, unless
the period needed to acquire this right started just after the violence.


Possession is assisted by two presumptions:

A present possessor who possessed the thing (movable or immovable) in
an earlier time, hes presumed to be the possessor also in the
intermediate time (art.1142, CC)
Present possession doesnt imply earlier possession, which is recognized
only if the possessor has a title (ex. A document which proves the
possession).

An important difference has to be made between possession:

By succession
Art. 1146, CC the possession of the deceased is given to the heir.

By accession
Art.1146,par.2,CC if the successor is different form the heir, he can add
his possession to the possession conveyed.

The action for recovery of possession

The legal system protects the existing state of fact against the violent or secret
deprivation of possession.
According to art.1168 CC, if someone has been violently or secretly deprived of
possession, they can within an year of the loss sue the taker for recovery of
possession.

In the protection of possession against its violent or secret deprivation, the State
has the monopoly in the use of force.

According to the above-mentioned article, the action of recovery possession is
also granted to one who has retention of the thing (but remember that, in this
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case, the protection is granted until the owner brings an action of revendication,
art.948 CC).

CHAPTER 11: THE LAW OF OBLIGATIONS

The concept of obligation. The sources of obligations.

The term obligation refers to the relationship between a debtor, under the duty
to carry out a certain performance towards a creditor.
Its a legal duty of the debtor to either:
- give something,
- do something,
- refrain from doing something
for the benefit of the creditor.

It follows that any kind of legal and economic relation which involves legal duties
between the parties can be considered as an obligation.
Since obligations are inter-personal relationships governed by legal rules, they
are originated in a fact or an act, which is known as their source.
The sources of an obligation are listed in the art. 1173, CC and they are:
contracts (art.1321,CC),
unlawful acts (art.2043,CC),
any other acts or facts which are capable of producing obligations
under the law (therere other rules which ascertain, case by case, the
existence of an obligation: promise to the public, promise of payment,
acknowledgment of debt, negotiable instruments, management of affairs
of another, payment of what is not due and unjust enrichment).

Performance of obligation

The performance, which is the object of an obligation, must be capable of
economic evaluation and must correspond to an interest, even if non
patrimonial, of the creditor (art.1174, CC)

Since the performance is the object of an obligation, we need to underline its
main features:
o the debtor may have to pay a certain sum of money to execute certain
legal acts on behalf of the creditor
o differences between:
- obligation to deliver something its when the debtor is under an
obligation to deliver a specific thing or a certain quantity of it. The
delivery involves also the transfer of ownership (not only the physical
action); hence the performance is not a thing but the action of giving the
thing. This kind of obligation includes also the obligation to safeguard
the thing until delivery (art.1177, CC)
- obligation to do something its when the debtor must perform some
activity with a view of satisfying an interest of the creditor. (ex. contract
of mandate, carriage contract)

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- obligation to refrain from doing something its when the debtor


must refrain from certain acts. (art. 2557, CC)


Relation between debtor and creditor

The Italian legal system tends to favor the position of the creditor, in order to
promote the circulation of wealth. Its so because the strength of the position of
the creditor depends on the solvency of the debtor and on securities assisting
their credit.

The relation between debtor and creditor is regulated by the art. 1175, CC. The
article binds both parties to behave according to rules of fairness.
Obviously the duty depends on the role, in fact for what concerns the debtor , the
obligation is specified as a duty to ensure diligence in performing the
obligation (art.1176, par.1,CC). Duties to behave according to fairness are
divided by the contracts involved.
Also the creditor is bound to behave according to fairness. In fact, in the case of a
debtor in default, the creditor must cooperate with the debtor in order to let him
perform the obligation (art.1206,CC).

Another important duty, that must be taken into consideration while talking
about obligations, is the duty to behave according to good faith in performing the
contract (art.1375, CC).

Obligations and liabilities

Legal tradition defines obligation as a constraint, hence weve to underline the
link between the legal duty and liability.
Art. 2740 states that a debtor is liable with all their present and future property
for the performance of their obligations. It means that by entering into an
obligation, a debtor exposes his property to the claims of his creditor; its for this
reason that its said that obligation comprises two elements: duty and liability.

Due performance and non-performance

Due performance

Due performance refers to the exact execution of the performance.
The debtor who does not exactly render the performance due is in default,
unless they prove that the non-fulfilment or the delay was caused by
impossibility of performance deriving from a cause not imputable to him.
(art.1218, CC, in this article are also rules the effects of non-performance)
The concept of exact execution has to be related to the activities performed, as
its written in the art.1176, CC.
Due diligence and fault

Art.1176,CC lays down that the debtor must act with the diligence of a good
pater familias, it means that he has to behave in conformity with what is

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commonly held as being right and proper, he has to behave as a reasonable


person.
The lack of due diligence implies fault by the debtor. Also in this case,
diligence must be evaluated in relatio to the nature of the activity performed,
hence we can talk about technical diligence in the nature of the activity execised
(art.1176,CC).

Due diligence and result
Normal due diligence of the debtor and his reasonable effort in performing his
obligation do not necessarily bring satisfaction to the creditor.
When examining performance of obligation, it should be specified that the
emphasis placed either on the diligence of conduct or on the result achieved
depends largely on the different legal relationships at issue, with reference to
contractual obligations.

In some cases, due diligence appears as the object of obligation and, in these
cases, we talk about obligation of means. Hence in this case we dont evaluate
the obligation in relation to the result obtained. (ex. lawyers are not under a duty
to win the case they take)

On the other hand, we can deal with situations in which the debtor is under a
duty to behave according to due diligence in order to produce a certain result,
obligations of result.
In this case, if the result is not obtained, the obligation is considered to be non
performed, regardless the fact that the debtor put his best efforts in trying to
achieve the result.

Modes of performance

Other elements that must be taken into cosideration in evaluating a performance
are the following:
Place of performance
An obligation can be portable (when it consists in the payment of a
determined sum of money to be carried out at the creditors address) or
querable (when the obligation is carried out at the debtors address).
Time of performance
A time period has to be specified, it can be the beginning or the end.
If the time is specified, both the parties can waive it.
If the time is not specified, the creditor can ask immediate performance.
Person carrying out performance
If the performance will be carried out by another person, which is not the
original debtor, this third party has to be specified.
The creditor cannot refuse a performance carried out by a third person
because art.1180, CC states that the obligation can be performed by
another person, even against the will of the creditor.
Person receiving performance
The obligation is discharged when due performance is carried out in the
hands of the creditor or of an agent of the creditor.

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Hence, the debtor is compelled to repeat the payment unless the creditor
approved the payment.
A second case, in which the obligation is extinguished, is know as
apparent creditor. In fact, if there are: 1)unambiguous circumstances,
2)good faith by the debtor and 3)faulty conduct by the real creditor,
courts dont require repetition of the payment but the apparent creditor
has the due to reimburse, with the entire amount, the real creditor
following the rules listed in the art.2033. (art.1189,CC)
Identity of performance
If the creditor consents, the debtor can substitute a new performance to
the original one. The original performance is exstinguished only when a
new performance is carried out in place of fullfillment.
If the original performance regards the transfer of owenrship or of
another right, it is assisted by securities. The new performance is not
assisted by securities. (art.1197,CC)

Non-performance and Impossibility



Non-performance is a mismatch between the performance carried out and the
due performance.
Non-performance may be caused by a variety of reasons, which may not
necessarily be ascribed to the faulty or intentional coduct of the debtor.

Art. 1218, CC states that the debtor who does not carry out due performance is
liable for damages unless they prove that non-performance or delay was due to
impossibility of performance for a cause not imputable to them.

Impossibility of performing an obligation must be objective (=it must not
depend on a particular situation of the debtor) and it must be absolute (=it must
be so compelling as to not offer any possibility whatsover of carrying out
performance).
The debtor must prove the existence of a cause external to them, which can be an
hazard (an event which could never reasonably be expected to occur) or to
force majeure (some occurrence that might be foreseeable but unstoppable) or
some act of authority.

Relevance of effort

Due diligence is the means of measurement of the exactness of performance
requested from the debtor. It varies in relation to the activities as it has already
been explained.

Performance non-actionable

Obligations arising from contracts place both debtor and creditor under the duty
of behving according to rules of fairness.
To demand performance under adversary circumstances may be ruled as abuse
of the right of the creditor with the effect that the performance, through possible,

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may be held as non-actionable. (ex. Jewish tenant who did not pay the rent
during the German occupation of Rome)

Effects of non-performance

The first effect of non-performance is set out under art.1218, CC; in fact the
debtor is liable for damages.
Non performance includes lack, flaw and delay. The three cases give rise to the
liability of the debtor for non-performance, hence the debtor has to compensate
the creditor for damages flowing from lacking, flawed or delayed performance.

Coercive performance

To obtain satisfaction of their interests against a debtor in default, the creditor
may turn to the courts and ask for coercive execution.
The creditor to obtain satisfaction can expropriate and put up for sale the
property of the debtor. (art.2910, CC ).
The revenue obtained from the sale should satisfy the economic interest of the
creditor if the obligation has a sum of money or the delivery of a repleaceble
thing as objects. (in these situations, coercive excution guarantees the payment
of damages)
For what concerns:
mandatory delivery or release of an obligation to deliver a specified
movable or immovable thing (art.2930,CC),
enforcement of obligations to do something (art.2931,CC),
enforcement of obligations not to do something,

the debtor has to pay for the destruction of the object of the obligation if the
object was done in violation of the obligation (art.2933,CC).

Default of debtor and default of creditor

A debtor is in default if they dont render due performance (art.1218 and 1223,
CC).
A debtor can also be prevented from carrying out the due performance because
of some failure due to some failure of the creditor.
If the failure of the obligation is due to the creditor, the responsability cannot be
imputable to the debtor, the interests as well as the fruits of the obligation are
not due and the creditor is liable for damages deriving from their default and for
the expenses for the custody and conservation of the thing which is due. (art.
1207, CC)

Compensation for damages

Under art. 1223 CC, damage is not only defined as actual loss, but also as profits,
hence theyre a direct and immediate consequence of the non-performance or
delay.
Compensation for the damages is limited to the damages that could have been
predicted at the time the obligation was undertaken. The situation is different if
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non-performance is intentional; in this case, compensation is extended to


unpredictable damages (art.1225, CC)
If the creditor has contributed to cause the damage, the compensation is reduced
according to the seriousness of the negligence and the extent of the
consequences arising from it (art.1227, CC). In additio to this, compensation is
not due for damages that the creditor could have avoided by using ordinary
diligence (art.1227, CC).

Causation

Theres always some chain of causation for a determined event, it means that
any event in a sequence of events may be viewed as a contributor to the
occurrence of the subsequent event. It follows that one definition of causality,
includes, among the causes of a certain event, all the preceding events the non-
occurrence of which would have prevented the event at issue from occurring.

In order to draw a distinction betweek weak and strong causes, one must
study the chain of causation, starting from the primary cause of the damage.
The primary cause has to be examined in order to understand whether that
event was potentially apt to cause the damage which ensued down the line of
causation. Hence only consequences within the bounds of what can be
reasonably expected to derive from a certain event, may be said to be considered
to be caused by it. This concept of causation is known as adequate causation
(the basis of the concept is the fact that an action must be adequate to cause an
event and an action is considered to be adequate when it is appropriate for
determining an event in accordance with the experience deriving from similar
cases).

Assessment of damages

Assessing the damages suffered by the creditor is a difficult task and when the
debtor is not able to prove the exact amount due to the creditor, article 1226
states that the exact amount is equally liquidated by the court. It means that
the judge decides the amount in relation to his personal valuation (since there
arent legal rules which help the judges in such decisions).

Manners of discharge other than performance

As we know, when the performance is completed, the obligation is naturally
extinguished. But we can also deal with obligation discharged in other ways,
which are provided for under 1230-1259, CC.
An obligation is said to be discharged by:

- novation (art.1230, CC) if the original object of the obligation is
subtituted with a new one, the obligation regarding the original object is
automatically discharged.
- declaration of remission of debt (art.1236, CC) if the creditor decide
to remit the debt (= the creditor voluntarily gives up his credit), then the
obligation is discharged.
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-
-

compensation (art.1241, CC) if the parties involved have obligations


one to the other, then the obligations are discharged.
merger (art.1253, CC) it the debtor and the creditor are the same
person, then the obligation is automatically discharged.


Particular cases of obligations

Obligation and plurality of subject matters

A debtor may be under the duty to carry out a plurality of performances, one
being the primary performance, the others known as secondary performances.
The plurality of performances refers to a plurality of distinct obligations
originating from a fundamental obligation. In fact, a single obligation has two
or more performances as subject matters. In this situation, the debtor is obliged
to perform one of the two specified performances. This situation is known as
alternative obligation and its stated in the art.1285, CC.
An alternative obligation is considered simple if one of the two performances
could not form the object of an obligation (original impossibility) or has become
impossible (supervening impossibility).

Another kind of obligation is elective oligation, which occur when parties have
agreed that, in the sole intesrest of the debtor, they may discharge their
obligation by elcting another performance.

Obligation and plurality of persons: plurality of debtors

The obligation may have a plurality of persons, it means that it may involve
several debtors and/or several creditors.

According to art.1292, if one of the several debtors carries out the performance,
the others are discharged from carrying out the performance required. The same
situation is applicable to creditors, in fact if one of them enjoys the performance
of the debtors, the debtor who performed is discharged with respect to the other
creditors.

Presumption of joint and several liability

In the case of several debtors, co-debtors are bound in solido (it means that
all the debtors have the due to carry out the performance but the fulfillment of
the obligation, by one of the debtors, discharges all the others non-fulfilment
of the obligation will give rise to joint and several liability)

Plurality of creditors

In the situation with more than one creditor, the obligation is considered in
soldo , when each creditor has the right to demand performance of the entire
obligation, and performance obtained by one of them discharges the debtor with
respect to all the other creditors. (remember that if the obligation is not in
soldo, each creditor has the right to demand satisfaction only of thir share.)
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Indivisible obligations

An obligation is indivisible when its object is a thing or an act which is not
susceptible of division by its nature or because of the way in which it was
considered by the contracting parties. This kind of obligations is ruled by the
norms related to obligations in soldo to the extent applicable.

Circulation of rights and obligations

The parties to the obligation

The relation between creditor and debtor is founded on the existence of a
source but sometimes the identification of the creditor and/or debtor comes
from a different legal relation.
For example the legal relation can be due to the fact that therere two co-owners
of single units in a condominium. The expenses related to units are divided
between the co-owners on the basis of their co-ownership share. (art.1104,
1139)
The obligation to pay is:
- an ambulatory obligation the right of ownership of the obligation
circulates among different persons
- an obligation related to a property interest or the right of ownership
the obligation to pay for expenses is attached to a property interest or
to the right of ownership.

CHAPTER 12: THE LAW OF CONTRACT

Nature and definition of a contract

A contract is the agreement of two or more parties to establish, regulate or
estinguish a patrimonial legal relationship among themselves (art.1321, CC)
Any agreement, which has as the object of the obligation a performace which is
susceptible of economic evaluation, is a contract (art.1174, CC). It means that
only the agreements having (primarly) an economic content can be considered
as contracts.

Art.1325 states the following cardinal requisites of a contract:
agreement
causa
subject-matter
form.

The absence, unlawfulness or defectiveness of any of these requisites render a
contract either void or voidable.

Purpose and efficacy of contract

As we can deduct from the definition, the contract is an agreement with the aim
of establishing, regulating or extinguishing a patrimonial legal relationship
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between two or more parties the aim of a contract is to freely regulate the
conducts of the parties involved. Its aim also explains its efficacy: a contract
has the force of law between the parties (art.1372, CC).
Even if the main effect of a contract is to regulate specific economic interests, the
effects produced by contracts are divided into two different categories:

- they tranfer ownership or estblish or transfer property interests
- they create obligations (art.1173,CC)

Therere cases in which contracts produce both effects (ex. sale)

Contract as legal act

The word agreement, used in art.1321, has the meaning of a meeting of wills.
But since the contract is a legal fact (art.1321), it has to be observed and
ascerained (its not a spitirual agreement). a contract is made up of such
expressions of the will of all parties as words, gestures, and conduct, by which
the parties express their mutual intent to achieve a certain set of interests. It
follows that the meeting of wills, mentioned above, has to be considered as the
convergence of statements or expressions of will, whose significance coincides.

Plurality of parties and interests

A contract is not an unilateral act in which acts generating legal effects originate
from the will of a single person (examples of unilateral acts: power of attorney,
notice to perform, notice of termination, declaration of renunciation, exercise of
the voting rights).

A contract is a multilateral act and the distinction between the two has to be
done in relation with the concept of party rather than on the concept of person.
A contract involves a minimum of two parties with separate and distinct
interests and the contract is intended to make these interests converge and to
satisfy them all. It follows that for every single interest of a party, theres a
correlative counter-interest of the other party, which often deserves equal
protection. This is the reason why contracts are regulated by rules which are
also applicable to unilateral acts between living persons having patrimonial
content (art.1324, CC).

Good faith

The cardinal principle which must preside over the general conduct of parties is
good faith. In fact, in the conduct of negotiations and during the formation of the
contract, parties are under a duty to coduct themselves according to godd faith
(art. 1337,CC).
Parties involved must act honestly and fairly in starting negotiations, in
withdrawing from them, and when entering into the contract.

The law places each party under the duty to inform the other party of the
existence of any reason for invalidity of the contract. In addition to this, a
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condact contrary to good faith, gives rise to liability for damages suffered by the
other party who has suffered a prejudice or has relied, without fault, upon the
validity of the contract. (art. 1338, CC) The liability taken into consideration is
known as pre-contractual liability.

Good faith is also the cardinal principle of the interpretation of contracts
(art.1366, CC).

The importance of good faith in contracts is underlined also by the art.1375,CC
which states that the contract has to be performed according to good faith
(=parties are under a duty to perform the contract according to good faith).

Contractual autonomy and its limits

Contractual autonomy consists in the fact that people are free to elect the
economic ends they wish to pursue as well as the means needed to reach those
ends.
It follows that the role of legislative and executive power is to set out the rules
of the game and provide for their non-infrangement, and not to step onto the
ground as players.

In the last two centuries, there has been some evolutions concerining the liberty
of contracting. The following three are the major ones (and they are all modified
and harmonized within the EU):

1. Protection of specified interes, held as prevailing over the free
market.
Since art.41 of the Italian Consitution states that the freedom of economic
initiative may not conflict with social utility or prejudice human safety,
freedom and dignity , it follows that freedom of contracts is lessened to
some degrees wherever it involves areas encompassing prevailing
interests (ex: urban planning and development, fairer distribution of
fundamental services, appropriate use of energy sources, environmental
protection, etc).
2. Protection of free competition.
In order to guarantee free competition, lawmakers have provided for
antitrust rules setting limits and regulating merger and acquisititons in
order to avoid monopoly practices.
3. Protection of weaker parties in the market.
People competing on the marketplace do not have equal strenght.
Classes of people who appear to be in a weaker position vary with
situations. Sometimes weaker parties do not need protection while in
other situations, the legal system grants protection to these parties.

The binding force of contract

Contractual autonomy implies that every person may at will dispose of their
interests within the limits laid down by the legal system. It means that everyone

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enjoys sovergeinity over their own interests ( they may not overstep beyond
the limits of their own interests).


Freedom to contract

The fundamental feature of the freedom to contract is the freedom to enter or
not to enter into a contract. At any stage of the negotiations and before its
acceptance, an offer may be revoked. (art.1328, CC)

The following are some excepctions regarding the freedom to contract:

- legal obligations to contract

companies which have a legal monopoly are obliged to contract with

another party requiring the service offered by monopolists (art.2579, CC)


- voluntary obligation to contract

it comes from a preliminary contract by which parties oblige

themselves to enter into a final contract

it comes from a contract of mandate in which the mandatory who has

acquired a specified thing, hes under an obligation to transfer to the

principal the thing purchased on his behalf (art.1706, CC)

Freedom of contract and contents of contract

Contractual parties are free to enter into new types of contracts which are not
regulated by the legal system, known as innominate contracts.
The contracts regulated by the legal system are known as nominate contracts.

The only thing, that must be taken into account while youre stipulating a new
type of contract, is that interests protected by the contract have to deserve
protection according to the legal system (art.1322, CC).

Innominate contracts are subject to the general rules regarding contracts and
they are different from mixed contracts, which combine features of separate
and distinct nominate contracts.

CHAPTER 13: THE ELEMENTS OF CONTRACT

Requisites of contract. Agreement.

As we already know, the first fundamental requisite of a contract is the
agreement (art.1325, CC). Its considered as the essence of a contract and its
composed of two elements:
Parties
persons etering into a contract must be vested with legal capacity to
act
Will decleared
it concerns the modes by which the expression of will and the
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convergence of wills leads to a binding contractual agreement.


The manifestation of will can be:

- explicit its when its communicated by words, spoken or

written or simple gestures (which are considered correponding to

words in the context raising of the hand during an auction)

- tacit its when no express sign has been used to express the

will but the objective conduct of the parties implies their will to

enter into a contractual relation.

A special application of the rule of tacit manifestation of will is the

implied renewal of a contract, it means that, after having sign

another contract, the original contract continues also after its

expiration date.

Due to the fact that a manifestation of will is required, mere silence does
not amount to acceptance.


Formation of contract

The rules governing formation of contracts are modeled after a simple
framework based on the exchange of offer and acceptance.

Offer is the manifestation of will by which the offeror, offers to the other party to
enter into a contract.

Acceptance is the manifestation of will by which the offeree communicates their
consent to the terms of the offere received. It represents the exchange of two
manifestations of will. (art.1326,CC).
As soon as the offeror receives notice of acceptance by the other party, the
contract is entered into and the offeror is bound by terms of their offer. The
acceptance is known by the two parties at the moment in which the offeror
receives the notice of acceptance, unless the offeror proves that he was not
notified (and not for his fault). (art.1335, CC).
The acceptance must reach the offeror within the time set or within that
ordinarily necessary according to the nature of the transaction or usage
(art.1326,CC).
If the offeror doesnt have time to wait for the offerees answer since he needs
that the performance take place without a prior reply, the contract is concluded
at the time and place in which performance begins. The offeree must give notice
of the beginning of performance to the other party and if they fail to do so, they
are liable for damages (art.1327, CC).

The offeror may revoke their offer before it is accepted by the offeree. However,
if the offeree has begun performance in good faith before having notice of the
revocation, the offeror is bound to indemnify them for the expenses and losses
sustained in beginning performance of the contract.
If the offeror has undertaken to keep the offer open for a certain time, revocation
is without effect irrevocable offer.

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An offer must include all the essential elements, stated in the art.1326, needed to
conclude the contract. It must express the actual will of the offeror to enter into
contract in the case of its acceptance.

In order to determine the conclusion of the contract, acceptance must match the
offet, it means that the offer has to acept all the terms of the original offer.

Preliminary contract

A preliminary contract is used by the parties to stipulate that a definitive
contract will be signed within a prescribed time. The parties involved are legally
bound by the preliminary contract.

In the art.2932,CC is stated that if one of the parties whcih previosuly signed a
prliminary contract wont perfom the obligation of the contract, the other party
can be obtain a judgement producing what was decided in the preliminary
contract.

Preliminary contracts for sale of immovables or for the transfer of property
interests on immovables may be registered in the Land Register.

The definitive contract must enetered within three years of the registration and
a preliminary contract is void if its not made in the form that the law requires
for definitive contracts.

Standard trade terms

Standard terms contracts have a common characteristic: one contractual party
drafts the terms of the contract, while the other party is merely required to
accept its content. In fact these contracts are also known as contracts of
adehesion.

The main aim of this contracting practice is to create uniformity in the shape
and form of reciprocal rights and duties in order to ensure expeditiousness
and immediacy of the transaction, as well as predictability of the costs of both
the performance due and the possible litigation.

Standard trade terms are effective if, at time of entering into the contract, the
other party knew of them or should have known of them by using ordinary
diligence. (art.1341, CC)

By signing standard trade terms, the party signing the contract accepts the
clauses they were aware of at the time of concluding the contract as well as the
terms of which he could have been aware of using ordinary diligence.
It follows that in order to standard trade terms to be effective, the person
drafting the terms in advance must provide the possibility for the other psrty to
know them using ordinary diligence.

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Standard trade terms are ineffective, unless specifically approved in writing, if


they establish, in favour of the party drafting them in advance, what follows:
Limitations on liability,
The power of withdrawing from the contract or of suspending its
performance,
Limitations on the power to raise defenses,
Restinctions on contractual freedom in realtion with third persons,
Tacit extension or renewal of the contract,
Arbitration clauses,
Derogation from the competence of court.

The drafter of strandard trade terms must ensure clear wording of the terms laid
out. In fact, art.1370, CC states that in case of doubts concerning the meaning of
the terms, the terms drafted by one party shall be interpreted in favour of the
other party.

Unfair terms in consumer contracts

The Italian Parliament has enacted a Consumer Code ruling for unfair terms in
consumer contracts (Legislative Decree n.206/2005, the directives were
previously included in the Civil Code, art.1469).
These Regulations apply in relation to unfair terms in contracts between a
business and a consumer.

Art.3 of the Consumer Code states that a consumer is any natural person who,
in contracts covered by these regulations, is acting for purposes which are
outside his or her trade, business or profession. According to the same above-
mentioned article, a business is any natural or legal person who is acting for
purposes relating to their trade, business or profession, whether publicily or
privately owned.

As far as its objective scope of application is concerned, the Regulations on unfair
terms are applicable exclusively to terms which have been drafted in advance by
the business .
A Contractual term which has not been individually negotiated shall be regarded
as unfair if it causes a significant imbalance in the parties rights and duties
arising under the contract, to the detriment of the consumer (art.33, paragraph1,
Consumer Code). Terms regarded as being unfair are void, whilst the contract
remains valid (art.36, Consumer Code); it follows that art.1419 CC, providing for
partial nullity is not applicable.

The assestment of the unfair nature of the terms shall not relate neither to the
determination of the subject-matter of the contract, nor to the adequacy of the
price or the remuneration payable as against the goods and services supplied in
exchange, provided that theyre idenfitied in a clear and comprehensive manner.
(art.34, Consumer Code)

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Terms reflecting legal provisions or that are reproductions of legal provisions or


implementations of principles contained in international conventions, are not
unfair. (art.34, Consumer Code)

Terms or parts of terms which have been individually negotiated are not unfair
(art.34, Consumer Code).
Even if individually negotiated, we talk about the nullity of therms if they:

Exclude or limit the liability of the business in case of the death of or
injury to the person of the consumer resulting from an action or an
omission on the part of the business,
Exclude or limit the claims of the consumer towards the business in the
case of total or partial non-performance,
Provide for the consumers total acceptance of terms that they could not
have learned before entering into the contract .

Individual negotiations means that before concluding the contract, the consumer
is awared of the otherwise unfair term.

The Causa

The causa is one of the essential requisites of a contract, it follows that any
contract must have a lawful causa.
The causa is unlawful (hence it leads to the nullity of the contract) when its
contrary to mandatory rules, public policy or morals (art.1343,CC).
The causa is unlawful also when the contract constitutes the means for evading
the application of mandatory rule. (art.1344,CC)

The subject matter

The subject-matter of the contract is listed among essential requirements of a
contract (art.1325, CC).
According to the art.1346,CC the subject-matter must be:
Possible a promise to do something physically or technically
impossible cannot be binding (even if contracts can provide for the
transfer of future things or future rights);
Lawful when it doesnt infringe the law (hence its unlawful when its
contrary to mandatory rules, public policy or morals);
Determinate or determinable contracts must expressely define the
perfromance due or the thing to be passed.

If the subject-matter is not explicitly or tacitly determined, the contract is void
unless therere sufficcient elements to determine the subject-matter, through the
aspplication of dispositive rules or through interpretation (art.1346 and 1418,
CC).

In order to determine the subject-matter of the contract, the parties may refer to
criteria fixed outside the transaction art.1474, CC: if in a sale the contract
doesnt explicitly set the price of the item sold and the parties did not spcify it as
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well as did not specify the manner of determing it, it is presumed that the parties
refer to the price normally set by the seller if the price is not established by
provision of a public Authority.

Parties can also relay on a third person in order to determine the performance
required in the contract. If it happens, the third person involved has to proceed
on an equitable basis; if it doesnt happen, the determination is made by the
competent court (art.1349, CC).

Contingent conditions

A contingent condition is an uncertain and future event on whose the
beginning of the effectiveness of a contractual obligation (condition precedent)
or their termination (condition subsequent) depends.

A contract which has unlauwful contingent conditions (=contrary to mandatory
rules, public policy or morals) is void (art.1354, CC).

A condition is held as impossible, according to art.1354, CC, if:
Condition precedent: it prevents the contract from ever taking effect
Condition subsequent: it amounts to the certainty that the contract will
never be termined.

A condition is defined as merely potestative if the event foreseen in the
condition depends on the simple will of one of the parties and it is an event about
the occurence of which the party is indifferent. the transfer of a right or the
assumption of an obligation subject to a condition precedent which depends on
the mere will of the transferor of the debtor is void (art. 1355, CC).

A person, who is under an obligation or who has transferred a right subject to a
condition precedent or has acquired a right subject to a condition subsequent,
shall act according to good faith during the pendency of the condition to
safeguard the interest of the other party (art. 1358, CC).
The sanction, for behaviour violating art.1358, is known as constractive
fullfilment (art.1359, CC) and it consists in the fact that a condition is considered
fulfilled if it doesnt occur for a reason imputable to the party who had an
interest contrary to its fullfillment.

The form

The requirement to have a written form maybe met by:
The simple written form the document has to be signed
The written form with authenticated signature the signature of the
person to whom its content is imputable has to be authenticated by an
authorized public official. It means that the public official authorized
(generally a notary) will identify the signatory prior to their signing the
document and will require them to sing in their presence.
The written form whose content has been authenticated (a.k.a. public
deed) the authorised public official ascertains that the content
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corresponds with the will of the declarants (the public authority is not
obliged to verify whether what has been declared to them is true or false).


A document drawn up by an unauthorized or incapacitated public official, or not
drawn up in compliance with the required formalities, has the same value of a
simple written form, if it has been signed by the parties (art.2701,CC)

If a simple written form is signed with a digital signature, it corresponds to a
written form with authenticated signature (Legislative Decree 159/2006).

CHAPTER 14: THE BINDING FORCE OF A CONTRACT

The force of law of contracts

Art.1372, CC states that: A contract has the force of law between the parties. It
cannot be dissolved by mutual consent or for a cause permitted by the law. It
follows that, from the moment in which a contract is concluded, the parties are
legally bound.

The right of withdrawal

The force of law entails that no party may unilateraly withdraw from the
contract. However, a right of withdrawal may be granted by law or expressely
provided by the contract. the exercise of the right of withdraw from the
contract terminates the rights and obligations generated by the contract.

A right of withdrawal is expressely recognized:
by Specific provisions applicble to independent contracts (art.1671, CC);
to the contract for the rendering of professional services (art. 2237,
CC);
to the contract of madate (art. 1722, 1723,1727, CC).

The right of withdrawal can be limited. In fact it can be exercised because of the
existence of serious motives or because of the existence of a just cause or
justified motive.

This right can be exercised before the performance, stated in the contract, begins
(art.1373, CC).
The situation is different for long term contracts which regard continuous or
periodic performance. In fact, in this situation, the right of withdrawal can be
exercised after the performace is already begun but it doesnt have a retroactive
affect (it means that the right will be exercised on the future performaces but not
on the onea already performed and the ones in course of execution)
(art.1373,CC). we can also deal with situations of failure to exercise the right
of withdrawal due to tacit renewal of the contract.

Withdrawal my be subject to payment of a sum of money by the party
withdrawing from the contract to the other party. If the payment of a

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compesation has been stipulated, the effective withdrawal takes place when the
sum is paid (art.1373, CC).
If, at the time of formation of a contract, an earnest was paid, it can be used as
compensation for withdrawal.
If a right of withdraw is stipulated for one or for both the parties, the earnest is
used to compesate the party which doesnt withdraw. This party will lose the
entire amount of the earnest or has to provide the other party with the double of
the value of the earnest. (art. 1386, CC)

All consumer contracts are entrenched with the right of withdraw but the
decision to exercise the right has to be made within a specified period of time to
the other party, provided that the purchased item can be returned undamaged.

Contracts transferring ownership or property interests

In art.1376, CC is stated the principle of mutual consent: the constitution or
transfer of ownership or property interests, or the transfer of another thing, such
ownership or right is tranferred and acquired by virtue of law fully expressed
agreement of the parties.
Under this principle, mere agreement has the force of transferring the right of
ownership and property interests. The purchaser becomes the owner from the
moment the contract is concluded, provided that the agreement is lawfully
expressed (= its expressed in the manner required by law).

Interpretation of contract

A contract is a free act presupponing an agreement between the parties to it, for
the regulation of their respective interests.

The content of the contract is determined by its interpretation. To interpret
means to attribute a meaning to certain events reflecting the will of the parties.
art.1362,CC : which was the common intent of the parties, not limited to the
literal meaning of the words, shall be sought in interpreting the contract.
The concept of common intent might imply the existence of some inner will
(= the will of a party whilist saying or writing certain things, or the
contemplation shared by both parties but not expressily set forth).

The purpose of interpretation is to determine the significance of the words,
gestures and conduct had at the time of signing a contract and in the place
and context they were used.

Common intent implies the coincidence or correspondence of meaning of
manifestations of the wills of the parties, or of the manner in which both parties
should have understood their joint statement.

The golden rule for the interpretation of a contract is that a contract shall be
interpreted according to good faith. (art.1366, CC)

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This rule flows from the application of the principle of reliance: a person who
receives a statement and, in good faith, regulates their acts in conformity thereof,
is deserving of protection.

According to art.1362, CC, interpretation must not only lead to the literal
meaning of the words but also the context (=connection between words) must
be taken into account. In addition to this, in order to have a correct
interpretation of the contract, also the general conduct of the parties (also after
haveing signed the contract) must me taken into consideration.

Art.1363,CC specifies that, in determining the meaning of the contract, every
clause is interpreted with reference to all others, attributing to each the meaning
resulting from the act as a whole.

It follows that clauses of a contract do not have to appear objectively ambivalent
and as having doubtful meaning. To avoid the just mentioned problem, law
makers set a series of criteria aimed at resolving doubts by attributing to the
contract one of the two or more possible meanings (art.1376-1371, CC).
objective interpretation of the contract (= choose between a variety of possible
meanings). Its different form the subjective interpretation which, instead,
consisnts in enquiring into the common intent of the parties.
Both kinds of interpretation are guided by the principle of good faith.
(art.1366,CC)
Ambiguous clauses are interpreted according to the general practice in the
place in which the contract was entered into. (art.1368, CC)

In case of doubt, expressions having more than one meaning shall be understood
in the sense most suitable to the nature and subject-matter of the contract
(art.1369, CC)

Provisions contained in standard trade terms or in forms or formularies which
have been drafted in advance by one of the contracting parties are interpreted, in
case of doubt, in favor of the other. (art.1370, CC)

If after the application of all the criteria of interpretation, the contract is still
obscure, it shall be understood (according to art.1371,CC):
in the sense least burdensome for the debtor (gratuitous contracts);
in the sense which equally reconciles the interests of the parties (non-
gratuitous contracts).

Filling gaps in incomplete contracts

Integration of the contract is the process which, on the basis of the agreement
reached by the parties, completes its contents and determines its effects.
A first step of integration is the application of rules on the insertion of clauses:
o art.1339, CC terms, including the prices of goods or services, which are
imposed by the law, are automatically inserted in the contract
o art.1340, CC customary terms (= procedures used in writing contracts
concerning a commercial and/or economic sector) are deemed to be
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included in the contract, unless it appears that they were not intended by
the parties.


Another important element that weve to remember when we need to integrate a
contract, is mentioned in the art. 1374, CC: a contract binds the parties not only
to what it expressly provides but also to all the consequences deriving from it by
law or in accordance to usage and equity. (the order of sources by which a
contract can be integrated is the previously mentioned one: law, usage and
equity)

Contracts and third persons

A contract does not produce effects with respect to third persons, except in cases
provided by law (art.1372, CC).

A contract in favor of a third person is valid when the stipulator has an interest
in it. The contract can be modified or annulled by the stipulator until the moment
in which the third person shows interest in the effects of the contract. (art.1411,
CC)

Agency and representation

Contracts can be negotiated and concluded by representatives of the parties
(or by representative of either party).

The act by which the power of representation is granted to the agent is known as
power of attorney. Its a unilateral act, directed to third persons, and is
intended to provide the proof of the authority conferred to the agent to act in the
name of the principal.

The power of attorney has to be conferred with the formalities prescribed for the
contract which is to be concluded by the agent (art.1392,CC).
The conferral of a power of attorney may be inferred from the conduct of
persons, or from de facto situation. the principals grant of an authority to an
agent to act in their name may be explicit or implied from the circumstances.

A contract entered into by an agent in the name of and in the interest of a
principal, within the limits of the authority conferred on them, directly produces
legal effects on the principal (art.1388, CC)
Therere three requirements that have to be met to let art.1388 be effective:
1. the agent must act in the name of the principal,
2. the agent must act in the interest of the principal,
3. the agent must act within the limits conferred on them.

A contract is voidable if the consent of the agent is defective; however if such
defect concerns matters predetermined by the principal, the contract is voidable
only if the consent of the latter is defective (art.1390, CC)

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In no case can a principal who is in bad faith take advantage of the ignorance or
good faith of a representative (art.1391,CC).


Sham contracts (simulation)

Parties may enter into a contract and agree that the transaction stipulated in the
contract shall not be performed; it means that theres a deliberated divergence
between the will of the parties and their declaration.

A sham contract does not have effect between the parties (art.1414, CC).
If the parties wanted to enter into a contract different from the apparent one, the
genuine contract has effect iff it meets the requirements of substance and form
(art.1414, CC).

Indirect use of contract. Fiducia -Trust.

Sometimes contracts are used in an indirect way.

Fiducia in an example of it and its different from what is known under the term
trust in Anglo-Saxon legal systems, whereby a person, the trustee, holds a
property in trust for the benefit of another, namely the beneficiary, who may be
the settlor of the trust (known as cestui que trust) or a third person.

One of the most relevant operational differences between fiducia and trust
concerns the degree of protection of the trust property (or trust fund) against
the claims of the personal creditors of the parties to the trust. Indeed, trust
property is separated from the property of the trustee, who has the authority to
administer it and dispose of it in accordance with statutory provisions and the
contract establishing the trust. (under statute n.364/1989, a trust established in
a jurisdiction that allows for such arrangements is recognized under Italian law).

CHAPTER 15: VALIDITY OF CONTRACTS

Validity, invalidity and effectiveness

Valid contracts have binding force and legal effectiveness.
Invalid contracts dont have binding force and legal effectiveness.

A contract is valid when it had been formed in conformity with what the law
prescribes and it is fit to generate stable and durable effects.
A valid contract is considered to be ineffective when:
its subject a condition precedent or
its effectiveness is postponed to a future point in time
because it has been signed by a person with no authority to conclude it
because its subject to a condition subsequent or to a final term
we are dealing with a sham contract where parties agree that the
performance shall not be executed.

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A contract is invalid when it has not been formed in conformity with what the
law prescribes and the contract is said to be:
void or subject to nullity if is irremediably unfit to generate effects;
voidable hence subject to annulment if is unfit to generate stable and
durable effects.

Void and voidable

Contracts contrary to mandatory rules are void unless the law provides
otherwise. (art.1418, CC)
In addition, a contract is considered null when one of the essential requirements
(listen in art.1325, CC) is missed.
Unlawful contracts (=contracts with unlawful causa or subject-matter) are also
void.
A contract is unlawful also if the parties conclude it solely for an unlawful motive,
common to both (art. 1345, CC).

Contracts concluded by a party lacking legal capacity to act are voidable
(art.1425, CC).

Vices of will

Contracts are also voidable when the party incurred in a vice of will at the time
of concluding the contract. Vices of will provided for in the CC are: mistake,
duress and fraud.

Mistakes are false representation of reality and it grounds for annulment of
the contract when it is essential and recognisable by the other party (art.1428,
CC).
According to art.1429, CC, the mistake is essential when:
it concerns the nature or object of the contract
it concerns the identity of the object of the performance or a quality of the
object which, according to common understanding or under
circumstances, should be determinative of consent
it concerns the identity or personal qualities of the other contracting
party, so long as the one or the others are determinative of consent
the mistake was one of law and was the only or the principal reason for
entering into the contract.
A mistake is considered recognizable when, with respect to the content, the
circumstances of the contract, or the quality of the contracting parties, it would
have been detected by a person of normal diligence (art.1431,CC)

By laying down that the recognisability of the mistake is a requirement in
order to grant the party who made the mistake the annulment of the contract,
the legal system wants to protect the other contracting party who, without fault,
relied on the validity of the contract.

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A mistake in calculation does not lead to annulment, but only to correction of the
contract, unless, producing a mistake as to quantity, it was determinative of
consent (art.1430, CC).

Duress is also a cause of the annulment of a contract.
The assessment of the suitability of the threat uttered to alter the formation of
the will of the contracting party is evaluated in objective terms, notwithstanding
its adaptation to the specific situation considered, by taking into account the age,
sex and condition of the person threatened.
Duress is cause of the annulment of the contract:
even if it is carried out by a third person (art.1434, CC)
when the harm threatened concerns the contracting party or their assets
or an ascendant or descendant of the contracting party.
If another person is threatened with harm, whether or not the contract should be
annulled is decided by a court, having regard to all the circumstances (art.1436,
CC).

Fraud is grounds for annulment of the contract when the deception used by one
of the parties is such that, the other party would not have concluded the contract
(art.1439, CC)
If the deception is not such as to determine consent, the contract is valid, even
though, without it, it would have been entered into under different conditions,
but the party in bad faith is liable for damages. (art. 1440, CC).

If the deception is practiced by a third person, the contract can be annulled if the
party who took advantage of it is aware of the deception (art.1439, CC)

The action of nullity

Nullity of a contract is absolute, it means that it can be claimed by anyone who
has an interest in it and it can be also found, in their own motion (rilevata
dufficio), by the court (art.1421, CC).
The action of nullity is not subject to any prescription, except for the effects of
prescription of usucaption and of prescription of actions for restitution (art.
1422, CC). It means that anyone having an interest in it may seek nullity of a
contract anytime, unless usucaption occurred or the prescription of the action
for restitution will prevent the return of the payment made which was not owing.

According to art.1424 CC, a void contract can produce the effects of a different
contract, of which it has the requisites of substance and form, whenever, having
regard to the objective pursued by the parties, they would have concluded it if
they had known of the nullity. a.k.a. conversion of void contract.
The fundament of the conversion of void contract is good faith.
A void contract cannot be validated, unless the law provides otherwise
(art.1423,CC).

The nullity of a contract works retroactively, both between the parties and, in
relation to third persons, even if they are in good faith and even if they have
acquired their right by onerous title. An exception is made by the transfer of
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ownership or property interests of registered movables or immovables,


provided that the action of nullity is registered after more than five years from
the date of the registration of the act attacked (= retroactive registration,
art.2652,CC).
The action for annulment

Voidability (or annulment) is relative. it may only be demanded by those
persons in whose interest it is established by law (art.1441, CC)

A contract is voidable for a vice of will or for incapacity.
A voidable contract will produce its effects unless a court decision declares its
annulment.

The action of annulment is prescribed in five years, whilst voidability can be
pleaded by the defendant in an action for performance of the contract, even if the
action of annulment is prescribed (art.1442,CC).

The voidable contract can be validated:
o by the party entitled to file a petition seeking its annulment,
o by a declaration containing a reference to the contract and to the cause of
its voidability and the declaration they intended to validate (art.1444, CC).

Annulment that does not depend on legal incapacity does not prejudice the
rights acquired by onerous title by third persons in good faith, except for the
effects of transcription of the petition for annulment. (art.1445, CC).

CHAPTER 16: TERMINATION OF CONTRACT

The concept of termination

The most common method of terminating contract is the carrying out of the
performance due by the parties. a.k.a. termination by performance

According to art.1372,CC a contract cannot be terminated except by mutual
consent or for a cause permitted by law.
Therere three causes, different from the rendering of due performance, where
termination of the contract may arise:
1. non-performance (art.1453,CC) if one of the two parties involved does
not perform what is stated in the contract, the other party can ask for the
annulment of the contract
2. supervening impossibility (art.1463,CC)
3. excessive onerousness (art. 1467, CC) if the due performance becomes
too onerous because of unpredictable events, the party in charge of
performing it, can ask for the annulment of the contract.

Dissolution for breach

In contracts for mutual counterperformance (where both parties commit
themselves to render a performance), if one of the two party doesnt execute
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exact performance, the innocent party may choose between different options
such as seeking the performance or dissolution of the contract. In any case, the
innocent party is entitled to compensation for damages. (art.1453,CC) non-
performance attributes to the innocent party the right to file a claim for
dissolution of the contract. Be careful that a contract cannot be dissolved if the
non-performance by one of the parties has slight importance with regards to the
interest of the other (art.1455,CC). a non-performance of slight importance
gives to the innocent party the possibility to be reimbursed but its not sufficient
to grant to the right to seek dissolution for breach of the contract.

A performance cannot be rejected if, considering the circumstances, the rejection
is contrary to good faith (art.1460,CC).

Dissolution of the contract can be demanded even after an action to demand
performance has been brought but a performance cannot be demanded after an
action for dissolution has been brought (art.1453,CC).

Out of court dissolutions for breach

The CC provides also dissolutions for breach without the need to file a
corresponding action in court.

There are three out of court dissolutions:
1. the notice to perform
The innocent party can serve a written notice on the other party, inviting
them to perform within an appropriate time and declaring that failure to
render due performance within such time will result in the dissolution of
the contract.
The time cannot be less than fifteen days, unless different agreements or
unless a shorter period appears justified by the nature of the contract or
by usage.
If the time elapses without the performance having been rendered, the
contract is dissolved by operation of law. (art.1454,CC)

2. the explicit dissolution clause
The contracting parties can explicitly agree that the contract will be
dissolved, if a specified obligation is not performed in the designed matter.
The explicit dissolution clause is important since it attributes importance
to a non-performance of slight importance.
It represents an application of the principle of contractual autonomy
(=the parties involved in a contract can freely determinate the content of
the contract with regards to the limits imposed by the law, art. 1322 CC).
The dissolution takes place when the innocent party declares to the other
that they intend to avail themselves of the dissolution clause
(art.1456,CC)

3. time essential to one party
The contract is dissolved if the time fixed for performance by one of the
two parties must be considered essential in the interest of the other.
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The time essential to one party may be inferred from the specific
circumstances of the contract, it follows that parties do not necessarily
have to explicitly agree on it.
If the party interested in the performance wants that the performance is
brought even if the essential time is expired, it has to notify its will to the
other party within three days from the expiration date. (art.1457,CC)

Dissolution for supervening impossibility

Supervening impossibility releases the debtor from performance, provided that
the impossibility is due to a cause not imputable to the debtor (art.1256 CC)
In contract for mutual counterperformance, the party released for supervening
impossibility of the performance due (art.1256 CC) cannot demand performance
by the other party and they are bound to restore (=its the action by which the
party, which paid something for which it didnt have to pay, can bring its money
back, art.2033,CC).

Impossibility of the performance leads to the dissolution of the contract, without
the need of any activity by the party who cannot render its performance any
longer (due to its impossibility) or by the court.

When the performance of one party has become impossible only in part (partial
impossibility), the other party has a right to a corresponding reduction of the
performance due by them, and they can also withdraw from the contract if they
lack an appreciable interest in partial performance (art.1464 CC).

We deal with a similar situation with temporary impossibility. In fact, art.1256,
CC states that temporary impossibility gives raise to the extinction of the
obligation if the impossibility continues until the debtor can no longer be
required to perform the obligation or the creditor is no longer interested in the
performance.

In contracts which transfer ownership of a specified thing or constitute or
transfer property interests, destruction of the thing by a cause not imputable to
the transferor does not release the transferee from the obligation of performance,
even through the thing was not handed over to them. (art.1465,CC)

Dissolution for excessive onerousness

If, in contracts with continuous or periodic performances, or deferred
performances, the performance of one party becomes excessively onerous
because of the occurrence of extraordinary and unpredictable events, the legal
system grants to the party which owns the performance, the right to seek
dissolution of the contract. (art.1467,CC)

Obviously dissolution cannot be demanded if the supervening excessive
onerousness is part of the normal risk of the contract (art.1476,CC).

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Dissolution cannot be demanded also if were dealing with aleatory contracts


(=contracts for mutual counterperformance in which the exact amount of at least
one of the parties performance is not determined at the moment of its
conclusion) (art.1469,CC). Dissolution can be avoided by the party against whom
it is demanded by offering to modify in an equitable way the economic terms of
the contract. (art.1467, CC)

Rescission of the contract

The legal system provides some form of limited remedy to unequal bargains
where economic imbalance flows from exploitation of either the state of danger
or the state of need one party finds himself in. rescission

A contract by which one party assumes obligations under unfair conditions
because of the necessity, known to the other party, of saving themselves or
others from a present danger of serious personal injury, may be rescinded on
demand of the party who assumes such obligations.
In awarding rescission the court can, according to the circumstances, award fair
compensation to the other party for work performed (art.1447, CC).

If were dealing with a disproportion between the mutual performances of the
contractual parties due to the state of need of one of the two party form which
the other party took advantages, the damaged party can ask for the rescission of
the contract. (art.1448, CC)

The action of rescission is prescribed in one year after the conclusion of the
contract, unless the fact is not a crime (difference with the annulment, which has
a fixed time for its prescription) (art.1449, CC).

CHAPTER 17: SECURITY

Liability of debtor

Under art.2740, CC, the debtor is liable for the performance of their obligations
with all their present and future assets. unlimited liability principle:
limitations upon such liability are not allowed except in the cases set forth by the
law.

Each creditor is equally entitled to derive satisfaction from the assets of their
debtor. This is the principle of equal protection of creditors stated in art.2741, CC.
In the same article its said that there could be a priority of one creditor over the
other creditors due to a privilege, a pledge or a mortgage.

Limited liability

A person entering into transactions puts at risk the entirety of their assets
(art.2740, CC) and all their assets, may be set against a specific class of the
liabilities accrued.

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From the above-mentioned article, weve to remember two important concepts:


limited liability and segregation of assets. The two concepts are broad concepts
which comprise a diversity of situations having in common the following
features:
a complex of assets which may be referred to a plurality of persons and
which are destined to a specific scope;
rules which place such assets under protection from the creditors of the
single person to which they may be referred, in order to ensure that such
assets provide a greater security to the debt incurred to attain the scope
to which they are destined. The respective persons to whom such assets
may be referred join limited liability towards the creditors of the venture;
flowing from the above, the segregation of assets and liabilities is based
on legal relations between several persons which do not involve their
respective personal assets and (unlimited) liabilities.

The concept of limited liabilities applies in different degrees to a variety of
situations: from community between spouses, to property funds jointly owned
by spouses, to groupings such as associations, committees and partnerships.
Under Italian law, the segregation of assets and liabilities is achieved to the
greatest extent possible primarily through the formation of legal entities as stock
companies, foundations and registered associations.

Pre-emptive rights

The previous mentioned principle of equal protection of creditors states that
each creditor is equally entitled to derive satisfaction from the assets of their
debtor. But why we talk about pre-emption?
Talking about pre-emption in this context means that one of the creditors is
entitled to priority over the other creditors in the satisfaction of their claims.
As weve already said, pre-emption arises from: privilege, pledge and mortgage.
Creditors with no title to pre-emption are known as unsecured creditors.

Security against default

Security against default covers all schemes instrumental in securing creditors
means of coercive enforcement of the obligation in case due performance of the
debtor is not discharged.

Typically there are two kinds of security:
personal surety (surety bonds, guarantees)
In this case, another person enters into the relation between debtor and
creditor as guarantor for the exact performance of the debtors obligation.
This guarantor thus become another debtor to whom the creditor may
request performance of the obligation and whose assets they may attack
as collateral security.

collateral (pledge and mortgage)
In this case, in a secured transaction, the creditor is vested with the power
to elect that a specific asset of the debtor be seized and sold, so that they
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may obtain a satisfaction in priority to other creditors from the proceeds


of this sale. pre-emption and right of pursuit for the creditor



Protection of the right of the creditor

A creditor is entitled to protection whenever the debtor puts at risk the generic
security tied to their obligation, either by neglecting to exercise their rights or by
attempting to conceal their assets out of the reach of creditors.
The remedies provided by the law to protect the rights of creditors are the
following:
Derivative,
Art.2900 CC: the creditor can behave like the debtor against third
persons if the debtor does not perform how he should. The object of the
performance has to have an economic content and the exercise of the
rights exercised by the creditor mustnt be reserved solely to the person
on whom they are bestowed.
the effect of the derivative action of the creditor is the reinstating of the
debtor in their assets and the protection and continuance of the existence
of such generic security also for other creditors.
Claw-back action,
Art.2901 CC : even where a claim is subject to a term or condition, a
creditor may demand that acts by which the debtor disposes of their
assets to the prejudice of creditors rights be declared ineffective towards
them ordinary claw-back action. It applies to cases where the
debtors try to alter and modify the status of their assets in order to make
the satisfaction of creditors claims more difficult.
The effect of the calw-back action is to declare ineffective with regard to
the creditor filing the action the contested act of the debtor.
Attachment
Attachment prevents both transfer of property and any other act aimed at
modifying its status. A debtor who removes or damages seized property is
subject to criminal sanctions and the acts instrumental to their transfer
are declared ineffective with regard to the creditor who filed for
attachment. (art.2906)


CHAPTER 18: TYPES OF CONTRACT

Introduction

Nominate contracts are specific types of contract individually named by the law
and governed by specific sets of rules which are supplemented by the rules of
contract in general.

In addition to them there are other contractual schemes created by the business
practice and recognized as admissible by the courts. In fact parties can also
make contracts that are not of the types that are particularly regulated, provided

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that they are directed to the realization of interests worthy of protection


(art.1322,CC).

Sale

The more ubiquitous and paramount form of contract of exchange is the
contract of sale, by way of which ownership of a thing or other rights pass from
one party (seller) to the other party (buyer) and a correlative amount of money
(price) moves from the buyer to the seller.

Sale is the contract having as its object the transfer of ownership of a thing or
the transfer of other rights in exchange of a price (art.1470,CC)

Hence, every contract where a right is transferred against correlative price, is
a sale.

The transfer of ownership or other rights occurs by mere agreement of the
parties, without the need for subsequent acts. principle of mutual consent
(art.1376,CC)
The above-mentioned principle is applied where sale involves transfer of
ownership of a determined thing, or of a limited real right on things owned by
others, or of another right. The same principle applies to sale of a specific mass of
things if the mass of things subjected to sale exists, its owned by the seller and
its identified as such. (art.1377,CC)

The principal obligations of the seller are (art.1476,CC):
1. To deliver the thing to the buyer,
2. To cause the buyer to acquire ownership or other right in the thing,
if such acquisition is not an immediate consequence of the contract,
3. To warrant the buyer against eviction and defects in the thing sold.
Warranty against defect is one of the natural effects of contract and,
consequently, does not require express agreement between the parties.
The case is different where additional express warranties are provided to
cover the proper functioning of an electric appliance or an automobile.
Such warranties extend beyond protection against defects to include an
express promise to perfume, free of charge, reparation of any failure that
might occur inside of a certain period from the date of purchase and as a
result of normal use. Such failures may occur even when the thing
purchased is free of defects.

Lease and leasing

In a contract for lease, the owner of a piece of property (movable or
immovable) grants to the other party (lessee) the exclusive possession and the
right of enjoyment of said property for a certain period of time, in exchange for
the payment of a rent (art.1571,CC). It follows that when the term of the lease
expires, the lessee must return the property leased to the lessor.


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The operative leasing is a contract by which:


1. A party grants the other party, upon payment of a fixed periodical rent
and for a fixed period, the use of a thing
2. Both parties agree that, upon expiration of the contract, the lessee may
elect to return the thing, renew the contract, substituting a new thing for
the former (or reduce the rent if the lessee retains the thing already used),
or acquire ownership of the thing by paying a residual price.

In the case of financial leasing, the lessee is generally an entrepreneur in need
of new machinery or equipment who calls upon a leasing company that will
finance the purchase from the manufacturer. The leasing company buys the
machinery or equipment selected by the lessee and then leases it to the
entrepreneur at a fixed rent. The three options, available for operating leasing at
expiration date, are valid also for financial leasing.

Contract for work and services

The main form of deal where a party promises to perform some work upon
payment of monetary compensation by the counter-party is known as a contract
for work and services.

Art.1655,CC specifies that one party (the contractor) undertakes to perform
some work or service and that the other party (the principal) undertakes to pay
a correlative in money. This form of contract is undertaken with an
appropriate organization of means and run at the risk of the contractor.

To qualify as a contractor, a party must:
Have an organization of means (= capital, material and human
resources necessary for the performance of the work promised)
Assume the risk of the construction operations (=assume the economic
risk of a possible inefficiency of the means organized, resulting in an
inability to duly perform the undertaking).

Summing up, a contractor is an entrepreneur because he must be possessed of
an organization, a business defined as a complex of property organized by the
entrepreneur to run the enterprise (art.2555,CC). And because he exercises an
activity at his own risk; in fact a gain or a loss depends on his cost/benefit
analysis.

A contractor may not subcontract the performance of the work or service he has
himself undertaken to perform, unless hes duly authorized to do so by the
principal (art.1656, CC) (NB: such restriction doesnt exist in the other Member
States of EU)

In defense of the interests of the principal, the law provides that the principal
may ascertain, at different stages of execution, the correspondence between the
undertaking as expressed in the contract and the works effectively performed.
The principal may inspect the works in progress. In the case of non-compliance
upon expiration of the prescribed period, the contract is automatically
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terminated, and the principle is entitled to claim compensation for damages


(art.1662,CC).

The principal also conducts a final test, prior to communicating his acceptance of
the works (art.1665,CC).

The contractor must provide warranty against defects. Once acceptance has been
communicated, such guarantee naturally applies solely to defects not discernable
by the principal or fraudulently non-disclosed by the contractor (art.1667,CC).

CHAPTER 19: GENERAL PRINCIPLES OF TORT LAW

Liability in tort

Once an injury has been ascertained, the issue of the reparation of injury for
what is known as unjust damage raises.

The first step is to establish the causation of the damage and after that, weve to
understand if its negligent or wilful.

Another important element that has to be taken into consideration, after the
causation has been ascertained, is the amount of damages to be paid by the
wrongdoer.

In tort law, civil liability entails the obligation to pay damages. The function of
damages is to remedy the injury, or loss, inflicted. This scope distinguishes tort
proceedings from criminal proceedings, where the object is punishment.
The Italian legal system did not draw a clear line between compensation and
punishment. In fact, pursuant to art.2043, CC, liability in tort arises only where
damage is wrongful and the conduct of the tortfeasor is blameworthy
(intentional or negligent).

Sources of tortious liability

Liability for damages arises primarily from committing a civil wrong (tort),
defined at law as an act or fact injurious to an interest protected at law, and
which causes detriment of the injured person.

The law draws a clear distinction between civil wrongs (tort) and such other
unlawful acts as pertain to non-performance of an obligation (breach of contract).

Such contractual wrongs presuppose that:

There exists between the parties a binding legal relation
There exists a case of non-performance by the debtor
Which non-performance causes damage to the creditor.

In the case of torts, no such requirements exist. In tort law liability does not arise
from a relation already existing between the wrongdoer and the injured party.
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Article 2043 CC

A civil wrong is any intentional or negligent fact causing unjust damage to
others.

Liability for damages (=compensation) falls to the person who has committed
the fact either intentionally or negligently, provided that the person has
capacity to understand and intend. (art.2046,CC)

Art.2043 CC provides the clues to the traditional elements which characterize a
tort:
Objective elements, pertaining to the fact proper and to its repercussions,
as are unjust damage and causation between facts and damage inflicted;
Subjective elements, pertaining to the conduct of the wrongdoer, as are
culpability, negligence and intention.

Strict liability

A person could be held vicariously liable for damage committed by a wrongdoer,
on the ground of the relation this person has with said wrongdoer. (somebody
could be held liable for the sole fact that he runs an activity from which he
benefits or on the ground that hes the owner of certain things).

All the cases of strict liability are necessarily rooted in the law, which expressly
lies down the rules applying to such circumstances.

Some rules establishing liability make up a distinct and separate group as they
answer the test of risk. Hence, persons pursuing certain activities, or benefiting
from the activities of others, or, again, possessed of things or means, incur the
risk of possible damage resulting therefrom.

Injury and damage

Damage is generally understood as referring to material loss, an injury or a non-
satisfaction of needs or exigencies that may be economic, physical or mental.
At law, the term designates:

a) Something injurious to an interest or
b) Something detrimental (to property or person) resulting from injury to
an interest.

Art.2056, CC lays down the test to assess the magnitude of the damage inflicted
by referring to art. 1223, CC. In art.1223 is stated that the compensation for the
damage has to include the loss sustained by the creditor as well as the lost
profits, as immediate consequences.

Art.2059 states that compensation for non-economic loss applies only to such
cases as are laid down by the law. (these cases are listed in art.185 of the
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Criminal Code: any damage must be compensated where the injurious conduct
which caused the damage is a crime damage causing mental distress, grief or
psychosomatic complaint as may affect the victim of a crime).

Remedies

The main object of liability is reparation of damage. The scope, wherever its
possible, is to restore the injured party to the position he enjoyed before the
injury occurred. The wrongdoer is therefore under obligation to pay damages.

The form of reparation for the consequences of the injury are:

Monetary damages pecuniary compensation amounting to the value
of the loss suffered by the plaintiff. It may be calculated on the basis of an
assessment of the damage suffered by the injury party.

Damages to be paid in compensation for torts are regulated as follows:
- loss sustained and lost profits are recoverable and this rests on the
principle of causation (art.1223,CC)
- the judge is vested with the power of assess equitably the magnitude of
damage, where a monetary evaluation may not be easily or precisely
performed (art.1226, CC)
- contributory negligence of the injured party shall be taken into account
in the determination of the amount of money to be awarded in
compensation (art.1227,CC)

Reparation intended to restore the situation of the plaintiff in the
same condition it would have been if the tortious fact did not occur.

CHAPTER 24: FAMILY LAW

The concept of family in the legal system

As used under art.29,30 of the Constitution and art. 143,144 of the CC, the term
family refers only to the spouses and their children (family nucleus).
On the other hand, the concept of family enterprise, comprises relatives in the
third degree (uncles, aunts, nephews and nieces) and in-laws in the second
degree (brothers and sisters-in-law).

Moreover the law no longer holds marriage as indispensable requisite to the
constitution of a family. The law distinguishes:
Legitimate family based on marriage, fully placed under the rule of the
law
De facto family based on cohabitation of parents and their natural
children, placed under the legal rule of direct line (limited range of rights
and duties)



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Constitutional principles

Art.29 Const solemnly recognizes the rights of the legitimate family as a
natural community founded upon matrimony and goes on to state that
marriage is based upon moral and at law equality between the spouses
Art.30 Const. lays down the rights and duties of parents and children
the right and duty of parents to support, instruct and educate their
children
Art.31 Const. lays down the duties of the State to ensure the protection of
the family as a social group and the protection of maternity and infancy.

Family relations: spouses, relatives and in-laws

The word family designates all the persons who qualify either as spouses or
relatives.
The term spouse qualifies the relation which arises out of matrimony between
husband and wife and which ceases only upon dissolution of the marriage.
Relatives are all such persons as descend from a common ancestor (art.74 CC), a
distinction is made between:
o Direct line persons descending one from the other
o Collateral line persons descending from one common ancestor, but not
from one another.

Spouses and relatives generate ties of affinity.

The concept of marriage in the Civil Code

Marriage is held as a pure act, it means that it is considered an act free of any
conditions or terms. It follows that if a conditioned or fixed-terms marriage is
celebrated, the fixed-terms are considered null and void even if the marriage is
valid (art.108 CC).

Marriage is held as the epitome of a voluntary act and, as such, its protected by
stringent provisions designed to ensure that the decision to assume a
matrimonial bond is free and unfettered by conditions. a promise of marriage
is not binding (art.79 CC).

In common law countries, the legal view is that marriage is a contract between
two parties whereby the spouses set down their financial stipulations and
autonomously regulate their matrimonial agreement.

Patrimonial regime of the family

Marriage has legal implications with regard to the patrimonial situation of the
spouses.
The law provides for a set of matrimonial arrangements which may be entered
into before marriage, upon marriage or even after marriage.

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Common property embraces such property as is acquired in the course of


marriage.

Estate and assets owned or acquired by the respective spouses prior to their
marriage remain personal property.
Personal property can also regard certain items acquired during the marriage
(art.179 CC): donations and inheritance, property of strict personal use, property
for occupational purpose, property received as compensation for damage,
property acquired with the proceeds from cession of other personal property.

Income is not part of common property, although the respective spouses are
under duty to contribute and must jointly decide the share of income to be
allocated for the needs of the family and for saving (common residue).

Separation of assets is the prevailing marriage arrangement adopted by families.

Separation and divorce

Until 1970 Italian law did not provide for divorce.

In 1975, lawmakers modified the provisions regulating personal separation,
whereby authorization of separation requested by one of the spouses became no
conger contingent on proof of culpability of the other spouse.

The Italian legal system still views the break-up of marriage as a last resort
resolution which is arrived at through an intermediate phase qualified at law as
personal separation.
Separation is a free and voluntary decision taken by mutual consent or not by
the spouses and, as such, needs no sanction of the law. de facto separation
De facto separation has legal implications where one of the spouses leaves
without the consent of the other and refuses to return. the one who leaves
doesnt have the right to ask for moral and material support by the other spouse
(art.146,CC, unjustified leave)

Legal separation is granted by a judge and is a prerequisite for spouses seeking
a divorce sentence. It may be:

Consensual it requires the accord of the spouses on matters respecting
assets and children custody. The judge is held to ensure that the interests
of the children and of the weaker of the two spouses are protected. Hes
also under duty to attempt reconciliation
Judicial it is granted by a judge upon petition by one of the spouses and
where such facts occur, even independently of the will of one or both
spouses, as render intolerable the continuation of cohabitation or as
should seriously imperil the education of the children.
Divorce may be granted only where it is ascertained that spiritual and
material union between the spouses may not be continued or re-
established due to the existence of one of the causes provided under art.3
(art.1 of the 1970 Statute)
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Divorce shall also be granted where the other spouse has been convicted of a
crime and sentenced to more than fifteen years imprisonment or has been
convinced for prostitution or for assault against the other spouse or the children.
Other grounds for divorce are certain crimes committed while insane, non-
consumation of marriage, nullification or dissolution of marriage by a foreign
national spouse in a foreign country, court sentence establishing change in
sexual identity.

Natural filiation

The law provides for natural filiation where there is no ground to presume
legitimate filiation (art.250,CC).

In case of conception out of wedlock, filiation at law becomes effective through
either a voluntary act of the parent (recognition of natural child) or through
ascertainment directed by a judge (court statement of paternity or maternity).

A recognition of natural child (art.250,CC) is a statement of knowledge
whereby a person declares to be the father or the mother of another person.
The act of recognition is unilateral even if it may be made jointly by both parents
(art.250, CC).
Its a pure act, it means that it may not be subjected to conditions or time
limitations (art.257,CC) and it is irrevocable (art.256,CC).
The statement of recognition is used to draw up the birth certificate whereby the
title to the status of natural child is given.

Recognition may also take place where both parents were respectively married
to another person when the child was conceived. adulterine child
(art.250,CC)

Recognition is prohibited (hence null and void) when the child is born of incest.
Even if the recognition can be authorized by a judge to protect the interest of the
child. (art.251,CC)

A natural child has the same rights and duties towards the parents as a
legitimate child does (art.258,CC).

The admission of the natural child of a married person into the family is subject
to authorization by a judge and contingent on consent of the other spouse and of
the legitimate children aged over sixteen, and of the other natural parent.
(art.252,CC)

Parental rights are different where relations entered into between parents and
natural children (art.371-bis CC). After having affirmed that parental rights are
established with the recognition, we can deal with different cases, in fact:

Where the child has been recognized by both parents and cohabits with
both, parental rights are exercised jointly by the parents,

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Where the child has been recognized by both parents but they do not
cohabit, parental rights are exercised by the parent living with the child;

Where child is subsequently placed in the custody of a third person, the


parent who first recognized the child exercises parental rights.


In all the above-mentioned cases, the judge retains a discretionary power to
decide otherwise in the interest of the minor.

To what concerns the surname (art.262,CC):
Joint recognition the child takes the name of the father
Separate recognition the child takes the name of the parent that first
recognized him.

CHAPTER 25: SUCCESSION UPON DEATH

Basic notions

The law of succession is based on two fundamental principles which restrain
each other: persons are free to make wills and families are entitled to inheritance
of wealth.

Succession is governed by law when there is no written declaration of the
intentions of a person concerning descendent of his property after his death.

Succession by will is disposition of property regulated by a will, that is a
revocable act by way of which a person disposes of all his property or part of it,
for the time when he will have ceased to live (art.587, CC)

Art.536, CC lists the people entitled to predetermined shares of the estate of
deceased:
1. The spouse;
2. Sons and daughters, legitimate and natural;
3. Parents and grandparents.

Effects of death

The law of succession is based on two fundamental principle which mutually
constraint each other: testamentary capacity and wealth descent along
family line.

testamentary capacity: people are at liberty to dispose of their own estate
for the time they cease to be (art.587 CC)
legitimate succession: property descends to the family of the deceased
(art.565, CC)

Heirs may only accept or renounce inheritance. The law expressly lays down the
principle of prohibition of inheritance pacts (art.458, CC) to safeguard the free
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decision of the testator and the concept of continuity through succession upon
death.

Inheritance and legacy

The entire patrimony of the deceased, inclusive of assets and debts, is subject to
succession. As a whole, such patrimony qualifies as a universality at law.

Since succession to the inheritance is succession under universal title, it follows
that the heir succeeds to the entire relations generated at law or to the other part
to which he is entitled.

The patrimony of the deceased becomes the patrimony of the heir and merges
with his own to make one. The heir runs also the risk of being liable for the debts
of the deceased.

Titles to succession

Legitimate succession is provided for by law absent all or part of testamentary
dispositions (art.457, CC).

Heirs at law are such persons as are entitled by the law of legitimate succession
to succeed upon the death of a person who dies intestate or who disposed for
only part of his estate.

Legitimate succession is subordinated to succession by will. (art.457,CC)

Testamentary succession is regulated by the dispositions of the will.
In case the dispositions of the deed should not resolve all the problems of
successions the provisions governing legitimate succession come into play.

Persons entitled to reserved portion

The spouse, the children born in and out of wedlock and the ascendant persons
are protected by the law, which provides that a part of the estate of deceased
(min a third, max three-fourth) is reserved to them and is considered non-
disposable.

The non-disposable part is known as legitimate part and the persons entitled to
it are known as persons entitled.
The non-disposable part is calculated by computing:
The value of the estate left by the deceased less debts (testamentary
assets)
The value of the estate that left the patrimony of the deceased during his
lifetime as a result of gifts.

The spouse is entitled to inhabit the house qualifying as family residence and has
the right to use the furniture it contains. (art.540, CC)

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Separate spouses retains all the rights to succession, under the tile of entitled
person!!
While if the spouse is beneficiary of maintenance upon separation, he/she has
the right as entitled person to a life annuity if payment of alimony was still
running at the time of death (art.548,CC).

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