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Sara Taccone|1
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
Sara Taccone|2
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,
Sara Taccone|5
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.
Sara Taccone|6
Sara Taccone|7
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
Sara Taccone|8
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.
Sara Taccone|10
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.
Sara Taccone|12
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.
Sara Taccone|13
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
Sara Taccone|14
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.
Sara Taccone|16
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
Sara Taccone|17
Sara Taccone|18
Sara Taccone|20
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.
Sara Taccone|24
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:
Sara Taccone|25
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.
Sara Taccone|26
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.
Sara Taccone|27
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).
Sara Taccone|28
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.
Sara Taccone|29
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.
Sara Taccone|30
Sara Taccone|31
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.
Sara Taccone|32
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
Sara Taccone|33
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)
Sara Taccone|34
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
Sara Taccone|35
Sara Taccone|36
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)
Sara Taccone|37
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
Sara Taccone|38
-
-
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.)
Sara Taccone|40
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
Sara Taccone|41
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
Sara Taccone|42
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
Sara Taccone|43
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
Sara Taccone|44
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.
Sara Taccone|45
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.
Sara Taccone|46
Sara Taccone|47
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
Sara Taccone|49
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
Sara Taccone|50
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)
Sara Taccone|51
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
Sara Taccone|52
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)
Sara Taccone|53
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.
Sara Taccone|54
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.
Sara Taccone|55
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
Sara Taccone|56
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.
Sara Taccone|58
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).
Sara Taccone|59
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
Sara Taccone|62
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
Sara Taccone|66
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)
Sara Taccone|67
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.
Sara Taccone|68
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,
Sara Taccone|70
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;
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
Sara Taccone|71
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)
Sara Taccone|72
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).
Sara Taccone|73