1. Fundamentals of Italian Private Law Sara Landini Department of Private Law University of Florence sara.landini@unifi.it

2. Summary: 1- Private Law and Public Law; 2- Hierarchy of Sources of Law in the Italian Legal System; 2.1- Constitution and Private Law; 2.2 – Community Legislation and Italian Private Law; 2.3. -The Role of Court of Justice of the European Communities (CJEC) and of European Court of Human Rights (HUDOC); 2.4 Law and Regulations; 2.5. Civil Code, Decodification and Recodification; 2.6. – Customary Private Law; 3.- The Role of Courts and Legal Scholars.

3. Books and Web Resources: ·G. IUDICA, P. ZATTI, Rules and Language of Italian Private Law. An Introduction (Italian ed. Linguaggio e regole del diritto privato, Cedam, 2003) translated by J. FUNCK, edited by S. LIEBMAN and A. MONTI. ·HESSELLINK, The New European Private Law, The Hague, 2002 ·JOERGES The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective, in European Law Journal, Vol. 3, No. 4, December 1997, pp. 378–406 ·TIGGIANO, Toward a civil code. The Italian Experience, http://www.teoriaestoriadeldirittoprivato.com/index.php?com=statics&option=index&cID=1 32 ·M. EINAUDI, The Constitution of the Italian Republic, in American Political Science Review, XLII, 1948, pp. 661-676 in www.jstor.orwww.jstor.or ·P. GROSSI, A History of European Law (Making of Europe), Laurence Hooper (Translator), Blackwell Publishing, 2010Laurence Hooper ·http://www.jus.unitn.it/cardozo/home.htmlhttp://www.jus.unitn.it/cardozo/home.html ·http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdfhttp://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf

4. Private Law Private law is the part of the law that deals with such aspects of relationships between individuals that are of no direct concern to the state. It includes the law of property and trust, family law, the law of contract, mercantile law and the law of tort. But….

5. Private Law Public Law Private Law in P.A. Activity (Art. 1 bis,L. 241/1990 on administrative proceeding; Art. 2, comma 4, Dlgs 163/2006 on public contracts). The liability of public administration is assed by applying general principles and rules on the torts contained in the civil code (S.C. 500/1999). Individuals or associations, acting independently according to the rules of the Italian private legal system, could active solutions of public interest and the State, regions, metropolitan cities, provinces and municipalities shall promote citizens’ autonomous initiatives. (Art. 118 C.)

6. Hierarchy of Sources of Law Community Legislation (EU Community 1957) Constitution (1948) art. 11, 117 C. Law Regulations art. 1 Preliminary Customary lawDispositions- Civil Code (1942)

7. Crisis of Legislation and of the Principle of Hierarchy The number of norms (constitution, community legislation, international treaties, ordinary law, regulations) produced to meet the needs of our developing society and the strong interplay between them, is undermining the certainty of the law and enhancing the judges power. According to art. 117 C. the principle of hierarchy is eroded by the principle of competence and by the principle of subsidiarity.

8. Crisis of the Principle of Hierarchy of Sources of Law National Constitution, Community Legislation, International Treaties, Ordinary Laws, Regulations, Customary law Law in action

9. Constitution and Private Law Every law needs to be conformed to the constitution. The Constitutional Court has to pass throw judgement on controversies on the constitutional legitimacy of laws. Lately the Court tends to avoid pronunciations on legitimacy or illegitimacy of the parliament laws and invites judges to read the law in a constitutional term

10. Example We can consider the judgment n. 335/2009 of the constitutional Court about legitimacy of the art. 537 of the civil code (c.c.). The art. 537 c.c. provides that legitimate children sharing an estate with natural children have the right of commutation, consisting in the power to pay the share of the estate which the natural children are entitled to in money or immoveables assets if not opposed by the latter ones. In the case of opposition, the decision on such a method of sharing is taken by the court.

11. Is the art. 537 against art. 30 C. saying that “It is the duty and right of parents to support, raise and educate their children, even if born out of lawful wedlocks”? The Constitutional Court states that art. 537 is not against art. 30 C. and that judges have to evaluate the concrete personal and economic conditions of parties (parent and sons) by enforcing the art. 537 according to the art. 30 C.

12. … We can note an evolution in the Italian model of judicial review by emphasizing the creativity of the Constitutional Court and the relations with the judiciary and the legislature.

13. Constitutional Norms that Conceive the Idea of “Person” as an Individual or in Social Communities. According to art. 2 “The Republic recognises and guarantees the inviolable rights of the person...” As said Einaudi “the constitution recognizes the right of citizen to be left alone and the right to be left free in the activity in which his life, both as an individual and as a member of the community, is fulfilled. But it does more than bar the state from entering these areas of freedom; it directs the state to lend the active support of its machinery to the securing of those rights to work, to security, to welfare, to education, which are today considered an essential part of any organized political society”.

14. Article 3 provides that “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions”. According to the art. 4 “The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective”.

15. Private spheres are protected by the guarantee of “Personal liberty” (art. 13 C.) and “Inviolability of personal domicile” (art. 14 C.). Also private activity is protected as a fundamental right. According to the art. 18 “Citizens have the right to form associations freely and without the authorization for those ends that are not forbidden by criminal law”.

16. The article 32, which provides that “the Republic safeguards health as a fundamental right of the individual”, has had remarkable importance with specific regard to tort laws. Constitution has had significant role in family law innovation (see Artt. 29 and 30).

17. Constitutional Norms on Economic Rights and Duties Art. 41 C. “…(private autonomy) may not be carried out against the common good or in such a manner that could damage safety, liberty and human dignity...” Art. 42 “… Private property is recognised and guaranteed by the law, which prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social function and make it accessible to all...”

18. Constitution and Private Law Interpretation In civil law systems, legislator uses “general clauses” such as good faith (art. 1366, 1175, 1375 c.c., art. 33 consumer law-dlgs. 206/2005), equity (art. 1374 c.c.), “public order” (art. 1343 c.c.) etc. We can try to define the term “general clauses” as “flexible rules” that increase the role of judges in making laws. Therefore general clauses can play an important function in counterbalancing the abstract binding force of a law and concrete social economic issues.

19. Constitution and “Public Order” The Italian “ordine pubblico”, comes from the French “ordre public” and evokes the fundamental principles of the legal system contained in the Constitution (GB. Ferri). Thus a contract of buying or selling votes or political influence is illegal and void because it goes against principles of the “ordine pubblico”. Infact such a contract is against the art. 48 of Constitution that says: “Any citizen, male or female, who has attained majority, is entitled to vote. The vote is personal and equal, free and secret.”

20. Constitution and Private Law # JUDICIAL REVIEW # LAW INTERPRETATION (Galgano, Rescigno, Alpa) # APPLICATION OF CONSTITUTIONAL NORMS (Perlingieri) CONSTITUTION PRIVATE LAW INNOVATION

21. Europe and Italian Private Law European law has significantly affected the Italian private legal system with special regard to the impact of European directives on Italian private law (such as consumer law, insurance law, etc.). We can’t understate the relevance of the Charter of Fundamental Rights of the European Union ( the so called Chart of Nice), that sets out the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU.

22. The Chart of Nice is now part of the Lisbona Treaty signed in 2007 and ratified by Italy in 2008. According to article 51 of the Chart: “ The provisions of this Chart are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application there of in accordance with their respective powers”. Most of the principles asserted by the Chart have a deepen impact in Italian private law system.

23. … European Courts Court of Justice of the European Communities ensures that EU legislation is interpreted and applied in the same way in all EU countries. European Court of Human Rights rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.

24. CJEC Some judgments of CJEC have made questionable the fundamental dogmas of contract laws regarding to the evolution of consumers’ contract law according to European directives. We can take into account some judgments related to the dogma of unrenounciability of the right of action for the declaration of nullity of contract. Such a dogma is generally known in civil law systems, such as the Spanish law and the Italian law

25. An Example The judgment C-227/2008 Martin v. EDP concerns the interpretation of Article 4 of Council Directive 85/577/EEC of 20 December 1985 on consumers protection in case of contracts negotiated away from business premises (OJ 1985 L 372, p. 31; ‘the Directive’). Under Article 4 of Law 26/1991, that transposes the Directive 85/577/EEC into Spanish law, it is up to the consumer to ask for the cancellation of a contract settled in breaking of the conditions laid down in the Article 3 of such a law.

26. … CJEC states that “, the national court may also have to take account, in certain circumstances, of the consumer’s wish not to have the contract at issue cancelled (see, by analogy, Case C ‑ 243/08 Pannon GSM [2009] ECR I ‑ 0000, paragraph 33)”. CJEC seems to recognize the right of consumers to validate void contracts according to their interests. ”

27. With regard to the impact of HUDOC jurisprudence on the Italian private law, we can take into account the case 28.7.1999 Immobiliare Saffi v. Italy. Immobiliare Saffi applied to the Commission on 23 September 1993. It assessed a violation of the Article 1 of the Protocol No. 1 and of the Article 6 § 1 of the Convention owing to the fact that it had been unable to enforce the order to quit for an endless period of time. Art.1 of the first Protocol says that“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. “

28. … The Court restates that “there must be a reasonable relationship of proportionality between the means employed and the aim pursued...The applicant company contended that the impugned legislative provisions had been intended as emergency measures that were justified only by the fact that the sacrifice imposed on landlords was a temporary one. The legislation had, however, remained in force for too long”. Thus HUDOC mantains that there had been a breach of Article 1 of Protocol No. 1.

29. National Legal Systems and European Integration Common Core Project involves at the moment more than one hundred scholars mostly from Europe and the United States. They are seeking to put out the common core of the of European private law, among the different legal systems of European Union member states. See http://www.common-core.orghttp://www.common-core.org

30. Law Under the category of “Law” we shall include: the laws of Parliament, and some acts of the Government: “Decreti legge” and “Decreti legislativi”. The Civil Code is a “Decreto legislativo”.

31. Decreto legge Art. 77 Constitution The Government may not, without an enabling act from the Houses, issue a decree having force of law. When the Government, in case of necessity and urgency, adopts under its own responsibility a temporary measure, it shall introduce such measure to Parliament for transposition into law. During dissolution, Parliament shall be convened within five days of such introduction.

32. Decreto legislativo Art. 76 The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified purposes.

33. Italian Civil Code It was adopted in 1942. It took the place of 1865 civil code It consists of 2969 articles divided into six books organized as follows: First Book -Individual Rights & Family Code Second Book -Succession Law (Italian Inheritances) Third Book -Real & Personal Property Fourth Book- Contracts Fifth Book- Labor & Corporations Sixth Book -Protection of Individual Economic Rights

34. The first book contains definition about juridical capacity and legal capacity. Natural persons and legal entities have juridical capacity that can be defined as the possibility to be the subject of legal relations. Individuals of age and legal entities have “capacity to act”, that is the power to do valid acts with legal effects.

35. Persona and artificial procreation To provide a complete definition of the concept of person it is necessary to identify the moment at which the person comes into existence from a legal point of view. The Italian Law of 19 February 2004, no. 40 contains ‘Rules governing medically assisted procreation’. Its purpose is to “enable the solution of reproductive problems deriving from human sterility or infertility’.

36. Many prohibitions Such a law consists mainly of prohibitions: prohibition against experimentation on embryos (Article 13 paragraph); a prohibition against research not intended for the protection of the health and for the development of the particular embryo that is the subject of the processing for the purposes of fertility (Article 13 paragraph 2); a prohibition against producing embryos for the purposes of research and experimentation (Article 13 paragraph 3 letter a)); a prohibition against any form of selection of embryos for eugenic purposes (Article 13 paragraph 3 letter b)); a prohibition against premature fission etc. of an embryo even for the purposes of procreation (Article 13 paragraph 3 letter c)); a prohibition (Article 14 paragraph 1) against the preservation of embryos by freezing (except for reasons of a sudden crisis in the health of the woman, pursuant to Article 14 paragraph 3) and against the destruction of an embryo (Article 14 paragraph 1); and a prohibition against the production of supernumerary embryos (beyond the number three) (Article 14 paragraph 2).

37. 1942 civil code showed the authoritarian vision of family enveloped by fascist regime. Italian family law has been strongly reformed, according to constitutional values. The most important innovation has been introduced by divorce law (issued in 1970) and by family law (enforced in 1975), which concerns the relationships between spouses, between parents and children, between children born in and out marriage.

38. Italian family law has been strongly reformed, according to constitutional values (artt. 29 -30 Cost.). The legal reform in 1975 finally endorses the constitutional principles (1948) of equality of the spouses and equal treatment of children born inside and out of marriage.

39. The evolution of family laws has had a relevant impact on inheritance law too, with a specific regard to the relationship between parents and children born out of wedlock. The last innovation of inheritance law concerns mortis causa contracts.

40. According to art. 458 c.c. mortis causa contracts are void. Such a disposition seems to be in conflict with the typical economic and financial aims of companies: efficiency and stability. Italian legislator has recently introduced some legal instruments to allow to the business- owner to plan the transfer of his business before his death.

41. …. In the civil code there are two different kinds of solution: the first one concerns “companies rules”. Statutes can provide limits on the transfer of shares mortis causa according to new article 2355-bis (introduced by d.lgs. 6/ 2003) ; the second instrument concerns the “Family Pact” which was recently introduced in to the Italian legal system as an alternative opportunity to manage the “transfer of the business”. The rules of “Family Pact” are contained in art. 768-bis and follows (introduced by law n. 55/ 2006).

42. Property Respect to 1865 code, in 1942 code there has been an effort to change the individualism that characterized its predecessor. So property has been redefined within ‘the limits and […] the obligations established by the legal order’ ( art. 832).

43. Private Autonomy Scholars say that 1865 code is the code of property, while 1942 code is the code of private autonomy (G.B. FERRI). One of the basic principles contained in 1942 civil code is that the parties are free to govern their economic relationship (art. 1322 civil code). The Civil Code contains provisions governing general contract principles and also provides for specific types of agreements. However, most rules may be modified by agreement between the parties.

44. The parties are free to conclude contracts also belonging to different types from those indicated by law, provided they are in pursuit of interest that deserve protection (art. 1322 c.c.) and according to lawfullness of the object, “reason”, subject matter, conditions (artt. 1343, 1345, 1346, 1354 c.c.)

45. Private Law and Private Autonomy Art. 1322  Private Autonomy as source of Law See Cesarini Sforza, Filippo Vassalli: “Extrastatuality of Private Law”

46. Decodification and …. The present complexity of law breaks up the original unity of the civil system and seems to create a plurality of microsystems inspired by different principles. CODEDECODIFICATION SPECIAL LAWS

47. …Recodification revision of the codes incorporating special legislation creation of new special codes such as consumer code (decreto legislativo 206/2005), insurance code (decreto legislativo 209/2005), privacy code (decreto legislativo 196/2003) etc.

48. Regulations Government and public Authorities adopt regulations which are secondary sources of law. Regulations of public authorities (such as Isvap, which controls insurance market, and Consob, which controls financial market) play a relevant role in private law system. For instance on May 26 2010 ISVAP published Regulation number 35 on the disclosure duties of insurance undertakings (with particular regard to pre-contractual information to insured parties) and the advertisement of insurance products.

49. Customary Law Customary law exists when a certain legal practice is observed and the relevant actors consider that to be law. ≠ Usages Soft Law

50. Soft law and Relationships between Individuals The term “soft-law” refers to a great variety of rules of conduct which haven’t the same force of law: declarations of principles, codes of practice, recommendations, guidelines, standards, charters, resolutions, etc. Although all these kind of rules are not legally binding, there is an expectation that they will be respected and followed by the community of individuals.

51. The Role of Courts and Legal Scholars As Hesselink concludes with regard to crisis of formalism in the new European legal culture “in a code system the courts and the scholars together master the gap between the abstract rules and the specific cases (concretisation) that legislator has left. Legislator (necessarily) provides abstract rules, the scholars are the expert on what their specific implication are, and the courts (inspired by these scholars) decide what they mean in specific case” (Hesselink, The New European Private Law, The Hague-London- New York, 2002, 16).

52. … Thanks for your attention!