Maria Giulia Roversi Monaco

Maria Giulia Roversi Monaco
PRINCIPLES OF LAW A.A. 2018/2019

Principles of italian civil law
G. Iudica, P. Zatti, Language and rules of italian private law: an introduction - Chapters 2, 3, 4, 5, 9, 10

Principles of italian private law Iudica – Zatti Chapter 2
In the italian legal system rules on contracts are to be found in the 1942 Civil Code (CC) and in special laws Legal rule abstractness: it covers a wide range of base-situations = situations under a legal rule Abstract base – situation = laid down by the legal rule Specific base – situation = situation materially falling under the legal rule If P then Q = rule of conduct generated by a deductive pattern Each legal rule states whether a conduct is lawful, compulsory or prohibited

Legal rule = Situation/conduct = effects are imputable to the DOER = they are the prescribed conduct and they consist in rights and duties which are born, modified, transferred and extincted under they own legal rule Complex base-situation: made by several factual element. All of them necessary (see art. 929 CC – property acquisition through invention), and usually happening one after the other progressively (see sale under contingent condition such as authority approval)

Interpretation: applying the abstract legal rule to a specific case = filling up the abstract base – situation = seeking the meaning of the provision since it is very uncommon to find a legal rule whose wording presents just one meaning. Generally speaking any intepretation needs to be consistent with the text under interpretation and to be considered on the basis of reason and non arbitrarity

Art. 12 of Preliminary Provisions to CC sets up the interpretation rules: 1) manifest meaning of the words as they are connected = literal interpretation. Each word must be given the meaning it has in the specific context of the specific law where the word itself is found. 2) consistency with the aims of the legal rule: teleological interpretation = the intention of the lawmakers according to political and historical situation of the issuance time and not their personal moods (drafts can help)

3) the parts of the legal system should be consistent with the whole = systematic interpretation What happens when there is a gap in the legal system? Since it is not a common law system, the Courts cannot create a new rule, but they can’t deny to solve the case So similar case must be found in order to apply the rule that operates for them to the “unruled for” cases = analogy

Analogy is possible on the assumption that any case falls within the legal system and can and must be solved within it Finally there are the general clauses (such as good faith, art CC) and the general principles of the legal system, to be found in the Constitution (i.e. art. 42 on right of ownership and its limits)

Legal fact: fact to which the legal rule gives specific legal effects, event to which the legal rule connects rights and duties: birth, death, car accidents Legal act: while facts may happen independently from the human will, acts are voluntary human undertakings that create rights and duties: contracts, wills, marriage, confession. 1) human acts: the law ascribes consequences to the act regardless of the intention of the doer (ex. Acquisition of property through invention) 2) legal acts: the intention of the parties is necessary to produce the specific legal effects

Lawful act = compliant with the legal rule which prescribes the conduct Unlawful act = it breaches the legal rule and it becomes subject to sanctions A conduct is unlawful when (i) it is prohibited by law or (ii) when it affects negatively interests protected by law Criminal law is characterised by law typification of the unlawful acts (crimes) sanctioned by law. No analogical interpretation is allowed

Private law is instead based on the statement of the ends of the lawmakers to satisfy specific interests Criminal wrongs: conducts against a protected value, the doer is subject to criminal sanctions (Criminal law) Administrative wrongs: conducts breaching rules established to protect the community interest and managed by the public administration (Administrative law)

Civil law: Unlawful acts: conduct which breaches a specific legal rule and it negatively affects the interests protected by the rule itself (breach of the duty to educate children – art. 147 CC) Civil wrongs: the conduct is not only grievous to the interests protected by the law, but it causes also wrongful damages to the aggrieved party (tort law). They bring civil liability = duty to compensate for the damages created

Civil wrongs are split in 1) contractual wrongs (art CC) = effects of failure to perform an obligation set up in a contract, harming the other party interest 2) non contractual wrongs (art CC) = unlawful facts concerning deliberate or culpable acts which unjustly damage somebody else out of a contract. The wrongdoer must compensate for the damages

Capacity to act (art. 2 CC) = capacity of undertaking, after the age of majority, all the acts for which, according to the law, is not required a specific age Acts not requiring a specific age: payments Acts requiring the capacity to act: contracts (1425 CC), judicial oath (2737 CC), marriage (84 CC) Ability of the person to understand the legal consequences when entering a contract and to obey to the legal rules which come with it

The autonomy of the parties is actually relative since they can choose whether or not to enter an agreement, but they must respect the legal rules laid down by the system with regard to the abstract base-situation The validity and effectiveness of a legal act must be assessed on the basis of the correspondence between the single legal act and the base-situation

Art CC: steps to assess the correspondence to the base-situation and decide whether to award the damages: 1) was the fact deliberate or culpable 2) was it it committed by someone capable of understanding (imputability) 3) has it caused directly and immediately (causation) unjust damage (unwrongfulness) to a third

Art CC = essential elements of valid contract (abstract base-situation): 1) agreement between parties with legal capacity and which have expressed their will plainly and properly 2) possible, lawful, determined or determinable subject-matter 3) lawful “causa” = function of the contract (1343 CC) 4) form as requested by the law for the validity of the contract Contracts have force of law between parties = contractual rules can be considered a form of private legislation

Valid contract = appropriate to generate the effects set up by the law Invalid contract = it lacks one of the requisites prescribed by law, thus it is not appropriate to generate the effects pursued by the parties Voidability or annulment: the flaw does not make the contract necessarily void. Lesser degree than nullity (ex. vice of will due to a mistake on the object of the contract), the contract has binding force until declared void upon request of one of the parties Nullity: the flaw consists in the lackness of one of the essential elements of the contract abstract base-position. It cannot generate binding legal effects

Individuals and entities are vested with rights and duties Natural persons = individuals Legal persons = collective entities which stay distinct from the individuals that make them Public legal persons: regions, provinces, municipalities Private legal persons Legal persons hold both rights and duties and act within the legal system. Thus they acts generate legal effects Natural persons get legal capacity at birth and lose it at death (art.1 CC) and acquires the capacity to act when they reach the age of majority (18 years)

Everybody has legal capacity from cradle to grave, i.e. is eligible to hold rights and duties (status civitatis, libertatis, familiae) = art. 2 of Constitution and art. 22 (nobody can be deprived of its legal capacity) Natural persons have (a) a domicile =principal center of businesses and interests (art. 43, 1 CC) and (b) a residence = habitual abode (art. 43, 2 CC) Capacity to act = acquired at 18, capacity to exercise duties and rights and to perform legal acts

Legal acts undertaken by individuals lacking capacity to act may produce legally binding effects (art CC, the contracts stays on until its annulment by Court; minor acting in name of a person with capacity to act - art CC) Mentally impaired persons can be deprived of the capacity to act through a judicial procedure formally establishing their incapability to act = interdiction/disability

If a person with an even transient disability to act enters a legal act (natural incapacity), the transaction can be annuled upon a request. The plaintiff must prove 1) that the natural incapacity existed when the act was performed; 2) if the act was unilateral, that is against the interests of the incapable person; 3) in case of a contract, that the other party knew the existence of the incapacity (bad faith) An incapable person is not liable to compensate for damages caused to third persons under art CC, unless the incapacity was self caused (drunk person having a car accident)

Legal persons acquire legal capacity after they are established applying the legal rules of the subject matter Collective persons: associations, corporations distinct from the individuals who compose them and who enjoy the limited liability priviledge = the assets and liabilities of the individuals are separated from the ones of the entity But in the italian legal system the limited liability is not recognised to every legal collective entity Non registered associations are not legal entities. Thus members who have acted for the association are personally and jointly liable with all their private assets

The same happens in the case of partnership companies where the partner has a personal and joint liability for the company’s debts Registered association and foundations and stock companies are legal entities and enjoy the limited liability priviledge: the assets and liabilities of the entity are distinct and separate from the assets and liabilities of the members/shareholders. Exception to the general principle of debtor’s liability with all his present and future assets for the fulfilment of their obligations (art CC)

Art. 810 CC (I Title, III book of CC) = property = i) things that (ii) can be subject matter of rights, it refers to the objects or rights not to the right of ownership i) Things = very generic word, it refers to material stuff, verifiable and quantifiable. Thus it can refer to intangible “things” as well (energy) ii) to fall under art. 810 CC things must be the subject matter of rights held by an individual or a legal entity. Res nullius = not belonging to anybody (fish in the sea) Res derelicta = abandoned by the owner does not belong to anybody

Ratio = rules are needed to solve conflicts arising from scarcity, if a thing does not belong to anybody and there is no scarcity the rule is not needed Things belonging to everybody = air and seas Art. 817 CC = appurtenance: one thing is principal and the other is secondary (appurtenance) and permanently dedicated to the service or the ornament of the principal (villa/garage). The relation is defined by the owner or those holding a right or property interest on the things

Appurtenances follow the principal thing in all transactions concerning it, unless differently stated by the parties Compound thing = all elements are necessary for the integrity/identity of the things (wheels/car) Things may replaceable and irreplaceable (quite relative concept influenced by the perception of the owner) Consumable (coke) and unconsumable (jewel) things Money is a thing, but only gold and silver coins have an intrinsic value. Paper money is given value by the State. Banknotes are promises to pay issued by the Central Bank

There are limits in the acts referring to one own’s body = a person cannot dispose of it if the disposal act brings permanent impairment of his physical integrity or violates rules, public policy or morals (art. 5 CC) Hair can be sold, blood cannot according to a special law (107/1990) Corpses are protected as living bodies

Things can be intangible = intellectual activity whose results can be ruled by the copyright or the patent laws = industrial property Now it is preferable to talk about economic utility subject to rights 813 CC = rules on movable things apply to all other things that can be subject matter of rights such as credits, services. Thing = any utility that may be subject to rights (810 CC) - any right that has an economic utility (813 CC) – any interest protected by law

812 CC Immovable property = soil, water sources, water courses, building, every construction joined to the ground either artificially or naturally, permanently or temporarily. Conflicts have arised in situations dealing with trailers, prefabs, temporary kiosks. Houseboats are considered immovable when permanently linked to the bank All the rest is movable things The 2 categories are subject to different rules on circulation due to their different nature of the things themselves Immovable things are subject to property interests and the transactions that involve them creating or transferring rights must be registered to make the rights enforceable toward thirds

816 CC = universality of movables = plurality of things that belong to the same person and have a common destination = flock of sheep, stamps collection, library Universality of things = it includes movable and immovable things (business = aggregate of things organised for the conduct of the business – 2555 CC) Estate of the deceased = universality of things by operation of law = all the assets and liability of a person are considered as a whole to apply the inheritance law Living persons assets are not considered an universality, even if they can be grouped when an individual is called to compensate for damages

820 CC = natural fruits derive directly from the thing with or without human intervention. For a while they are part of the thing and then they separate (wood, products of mines). They can be object of a transaction before the separation from the main thing (future movable thing) 821 CC = civil fruits derive from the amount received by the owner or property right holder to compensate the enjoyment of the thing by another person. No separation, the fruits are set up on a day by day basis

Art. 42 Constitution = ownership is either public or private. Economic things belong to the State, the institutions or to privates Public owned things have a special discipline set up in art. 822 ff CC, but public entities can own both private and public things. List of things belonging to the State assets (demanio pubblico): beach, sea shore, harbours, rivers, lakes, public waters, national defence assets If they are owned by the State: roads, railways, freeways, airports, aqueducts, cultural heritage assets, all the thing so defined by the law

823 CC = these things cannot be sold and can be subject to property rights just on the basis of the law 826 and 828 CC = things not included in the list but owned by the State or by the Provinces and the Municipalities belong to the State Estate: mines, caves, forests, war boats, army planes, buildings used to perform a public service or a public function. Their destination cannot be changed unless according to the law which rules the subject matter

The State can own private things that are subject to the CC rules Private things = art. 832 ff. Cultural heritage assets owned by privates are subject to special disciplines restricting the rights of the owners to pursue the public interest of the cultural heritage protection

Principles of italian private law Iudica Zatti Chapter 9 - Ownership
Civil Code III Book = Law of Property 832 CC = the owner has the right (1) to fully and exclusively enjoy and dispose of things, (2) within the limits and complying with the obligations set by the law Before Constitution it had the rank of a constitutional principle = absolute right Ownership is disciplined as well by specific statutes It is a multi-shaped concept, influenced by the identity and the capacity of the owners, the nature and the value of the thing. Legal persons can own things.

New economy = evolution of the right of property following the birth of immaterial and intangible assets. De-materialization of wealth From bricks and slicks to clicks The CC focuses principally on rights flowing from land and immovable objects Enjoy = extract any utility from the thing Dispose = destine it to certain use and transform it. To have the legal disposition means to modify the legal status of the thing. The enjoyment of it is linked to the material status

Fully = within the limits of the law. The law states what it must be done and may not be done. It does not refer to what can be done with the thing Exclusively = absolute right, thirds cannot interefere with the enjoyment of the thing But no emulative acts = acts undertaken with the sole purpose of annoying or harming others (833 CC, ex. doing something lawfully but making the other person life unnecessarily harder)

Courts have limited the prohibition of emulative acts, stating that a minimal utility is enough to letimize the owner’s choice = no control of proportionality between the advantage of the owner and the annoyance of the others Perpetual right: the action of revendication (to get back one’s property) is not subject to any prescription. Even though the inactivity of the owner may have legal effects on the right of ownership

Land ownership can affect both individual interests and community interests = 845 CC = subject to specific laws to attain public interests purposes 873 CC = distances between structures on adjoning lands: it protects both the neighbors interests, and the public interests not to have too narrow eaves between buildings Land law: i) relations between neighbors; ii) urban planning; iii) rural property The right extends to the subsurface and the space above ground down and up the level where the owners have an interest to exclude others (i.e. it is possible to ask to move or make less noisy a landing area, not to prevent the flying)

Property is usually acquired through a contract or through succession = the acquisition of the right in both cases is by derivative title, the new owner acquire the same right and position of the previous one Specific limitations and rules on antiquities, mines, water works Property interests: 1) purpose of enjoyment (usufruct, use, habitation) or 2) purpose of security (mortgage). They grant to the holder rights on the thing

Usufruct: property interest = right to enjoy the thing respecting its destination (981 CC; ex. Replacing of dead animals in flocks – 994 CC) Usufructuary can assign the right if not forbidden by the source of usufruct (980 CC) Duties of usufructuary: i) apply the diligence of the good pater familias (1001 CC); ii) keep an inventory of expenses and keep suitable security (1002 CC); iii) pay ordinary expenses (custody, management); iii) pay taxes releted to the revenues. The owner pays the ones related to property

Use and habitation differ from usufruct just in the content: the former concerns the use of the thing and the collection of fruits only to the extent necessary to his needs and his family's needs; the latter consists in the sole right of habitation (1021, 1022 CC) Predial servitutes = burden on a land for the utility of another land belonging to a different person (1027 CC). Ex.: right of way over the neighbor's land (dominant and servient land)

The utility may consist in a greater convenience or amenity of the dominant land, but the servient land’s owner is not bound to act in order to make possible the exercise of the servitute by the dominant land’s owner (1030 CC) Servitutes can be compulsorily or voluntarily created. They can be acquired through usucaption and by the destination of the head of family. They can be stated in Courts as well when they are compulsory. The judge will award an indemnity to the servient land’s owner

Compulsory servitutes: 1) passage of water (1033 ff CC) and removal of surplus water if the dominant land lacks it to meet the needs of people, animals and domestic uses 2) to reach land without access to the public way, when the access either does not exist or cannot be acquired without excessive expenditure or inconvenience (1051 ff CC) 3) electric lines and funiculars

Servitutes may end through (1) confusion when the owner of the dominant land and the owner of the servient land become the same person (1072); (2) limitation when the servitute is not exercised for 20 years. Impossibility to exercise the servitute or lack of utility are not enough for the termination of it if 20 years have not ran (1074 CC) Common ownership = sharing of ownership among more than 1 person

Voluntary common ownership: 2 or more persons buy something together, 2 or more owners of land join together Incidental common ownership: heirs sharing assets Forced common ownership: common ownership in buildings (land, foundations, roofs, stairs, lift) (1117 CC) The system does not favour common ownership. Thus its dissolution can always be demanded by each party (1111 CC). Dissolution rules do not apply to common ownership in buildings unless partition is possible without aggravating the position of each member (1119 CC)

Principles of italian private law Iudica Zatti Chapter 10 - Possession
Possession has a different legal meaning from ownership It indicates the power of a person on a thing from a factual point of view, whether the person holds a legal title on the thing or not 1149 CC = power over a thing as expressed in an activity corresponding to the exercise of the right of ownership or property interest The concept focuses on an activity, on a conduct

The person behaves as if he were the owner or he were vested with a property interest The existence of the correspondant right is not relevant, the conduct of the person behaving as the owner is the most relevant feature Possession does not need the physical availability of the thing: in case of a rented flat the owner gets the rent and behaves as the owner even if the flat is not in his physical availability

1140, 2 CC = possession can be direct or by means of another person = retention The retainer behaves in a way incompatible with the right of ownership or other property interests Usually owner and possessor are the same person: the state of fact and the situation at law do not conflict. But that is not necessarily always true: stolen objects Power in that case does not mean lawfully exercised authority

The issue concerns the rules to discipline the situations where the state of fact and the situation at law are conflicting Movable things: Possession vaut titre: 1153 CC = the person acquiring the thing from the possessor becomes the owner of it by way of possession if (i) he’s in good faith at the time of the transfer = not aware that the possessor is not the owner (ii) the title is abstractely appropriate for the transfer of the ownership = ex. Sale contract (iii) the possession of the thing is transferred

The party acquires the ownership by original title, thus the right of the transferee is independent from the right of the transferor who is not the owner The choice of the legal system aims to encourage the circulation of wealth In common law systems, on the contrary, the rule is QUOD NON HABET, NON DABET So the good faith buyer can never acquire the ownership of the object from a non owner

These rules work for movable things and they work for usufruct and use as well They do not operate for registered movable (1156 CC) since the buyer cannot claim to be in good faith, having the possibility to check public registers Movable and immovable things can be also acquired through usucaption, applying the same line of reasoning: continuous and uninterrupted possession over time on a thing (1158 ff CC)

Ordinary term = 20 years 1161 CC = for movable things and property interests the term is 10 years if the possessor is in good faith (otherwise it stays 20 years). Usucaption in case of movable things works when art CC cannot be applied (no appropriate title or no good faith) 1163 CC = if the thing is acquired through violence or in a clandestine manner usucaption does not work. It can become relevant only when the violence and clandestinity end

Usucaption does not need good faith = (i) favor of the legal system for active use of property against an inactive one; (ii) situation of fact over time = situation at law to satisfy the need for certainty 1142 CC = actual possessor is considered to have possessed during the intermediate time Present possession does not affect earlier possessions unless the possession is acquired on the basis of a title: in that case it is presumed that the possession started from the date of the title

Possession periods can be cumulated Possession by succession (1146, 1 CC) = from the deceased to the heir Possession by accession (1146, 2 CC) = successor who is not heir adds his possession to the conveyed possession Usucaption applies to all property interests including servitutes

Actions to protect the state of fact against violent deprivation of property The system protects the state of fact 1168 CC = persons deprived violently or secretly of possession may act to recover the possession itself within 1 year of the loss. Restoration is ordered by the Court based on the knowledge of the fact without delay = action for recovery of possession The order is issued to protect the possession not the right of ownership, thus without considering the situation at law

The ratio is to protect the order within society: before deciding who holds the right, the system restores the possession to the person violently or silently stripped of it In this way, first the possession is granted to the claimant and then the issue of who the holder of the right is will be discussed The action can be brought up by the retainer (tenant even against owner) except in cases of shelter or service (hotel guest cannot exercise it)

Principles of italian private law Iudica Zatti Chapter 11 – The law of obligations
Obligation: relationship between creditor and debtor Legal duty on the latter to GIVE something, to DO something, to RESTRAIN FROM DOING something with regard to the former Performance capable of economic evaluation; legal and economic relation involving a legal duties Relationship in which the debtor is required to give a performance economically evaluable to satisfy the interest of the creditor

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