Private Law Fundamentals: Sources, Legal Situations, Acts, Goods, and Legal Subjects

Comprehensive practice flashcards covering sources of law, subjective legal situations, legal facts and acts, classifications of goods, and legal capacity and subjects.

What are the sources of law (fonti del diritto) and what is their function?

They are the factors that create legal rules in the legal system and allow the law to innovate through the creation of these rules.

Into what three levels are the sources of law divided?

They are divided into constitutional sources (the Constitution, constitutional laws, and constitutional revision laws), primary sources (ordinary laws and acts having the force of law), and secondary sources (government regulations).

What structural components make up written legal sources?

They are composed of articles (articoli), paragraphs (commi), and titles/headings (rubrica).

How are longer legal texts, such as the Civil Code, subdivided?

They are divided into books (libri), titles (titoli), chapters (capi), and sections (sezioni).

What are the six books that compose the Italian Civil Code?

Book 1: Persons and family (persone e famiglia); Book 2: Successions (successioni); Book 3: Property (proprietà); Book 4: Obligations (obbligazioni); Book 5: Labor (lavoro); Book 6: Protection of rights (tutela dei diritti).

What are customs (consuetudini) and from what two elements do they arise?

They are unwritten sources of law that arise from the constant repetition of a behavior and the conviction that such behavior must be respected.

What are the three classifications of customs in relation to written laws?

Customs contrary to laws or regulations, customs that integrate laws and regulations, and customs that are not referenced by laws or regulations.

What is a subjective legal situation (situazione giuridica soggettiva)?

It is the position that a legal subject must hold with respect to the law and toward other subjects.

What is the difference between an active and a passive legal situation?

In an active legal situation, the interest of the holder prevails over the interest of other subjects; in a passive legal situation, the holder has an obligation toward other subjects.

What is a subjective right (diritto soggettivo)?

It is the most important active legal situation, concerning the power of action that a subject has toward another subject to pursue their own interest.

What is a potestative right (diritto potestativo)?

It is a subjective right concerning the power to affect the subjective situations of others without the holder of those situations being able to prevent it.

What is a legal faculty (facoltà)?

It is the possibility granted to the holder of a right to engage in a behavior without that right becoming exhausted.

What is an expectation (aspettativa) and how do de facto and legal expectations differ?

An expectation is the position of someone who does not currently hold an active situation but expects to acquire it at a specific time. A de facto expectation (aspetti di fatto) lacks legal protection and remedies, whereas a legal expectation (aspetti di diritto) has protection comprising legal remedies.

What is a legitimate interest (interesse legittimo)?

It is the position where a person has an interest in ensuring that the public administration makes a correct decision that complies with the law.

What is a collective interest (interesse collettivo)?

It is the situation in which a subject is damaged by other subjects and their behaviors.

How does a legal duty (dovere) differ from a legal obligation (obbligo)?

A duty is a negative behavior prohibiting harm to someone else's subjective right, whereas an obligation is the duty to do something toward and in the interest of a specific subject.

What is potestà?

It is a set of powers that must be exercised in the interest of other subjects rather than in one's own interest.

What is an onus (onere)?

It is the situation of someone who must adopt a specific behavior if they want to have the possibility of using an active legal situation.

What are legal effects (effetti giuridici)?

They are changes in legal situations concerning the creation, modification, or cancellation of a right or obligation caused by events provided for by law.

What is the difference between an abstract fattispecie and a concrete fattispecie?

An abstract fattispecie (fattispecie astratta) is the theoretical description set forth in the law, whereas a concrete fattispecie (fattispecie concreta) is the event that actually occurred in reality.

How are simple, complex, and progressive fattispecie distinguished?

A simple fattispecie requires only a single event to create a right; a complex fattispecie involves multiple combined elements; a progressive fattispecie occurs when these multiple elements do not happen at the exact same moment.

What distinguishes legal facts (fatti giuridici) from legal acts (atti giuridici)?

Legal facts are events that generate legal effects without anyone's will, whereas legal acts are events that occur through someone's will in order to obtain legal consequences.

What is the difference between negotiable acts (atti negoziali) and non-negotiable acts (atti non negoziali)?

Negotiable acts involve both the will to perform the act and the will to produce the legal effects linked to it, while non-negotiable acts involve only the will to perform the act without the will to create legal effects.

How are patrimonial acts distinguished from non-patrimonial acts?

Patrimonial acts concern economic situations, whereas non-patrimonial acts concern situations that are not of an economic nature.

What is the difference between onerous acts (atti onerosi) and gratuitous acts (atti gratuiti)?

Onerous acts involve both parties sustaining an economic sacrifice to obtain an economic advantage, while gratuitous acts involve sustaining a sacrifice without obtaining an economic advantage (such as donations).

How do public subjective rights differ from private subjective rights?

Public subjective rights confer powers that affect political organization, whereas private subjective rights do not affect political organization (e.g., property).

What is the difference between absolute and relative subjective rights?

Absolute subjective rights can be enforced against all subjects, whereas relative subjective rights can be enforced only against a specific subject.

What is the difference between available (disponibili) and unavailable (indisponibili) subjective rights?

Available rights are those that the holder can transfer or extinguish via a legal act, whereas unavailable rights cannot be autonomously and freely transferred or extinguished by the holder.

What is the abuse of a right (abuso del diritto) and why has the debate about it diminished?

It occurs when a right holder engages in behavior that harms the general interest; the debate has lost significance today because existing legal rules already impose numerous limits on subjective rights.

What qualifies as a good (bene) under the law?

Goods are things that form the object of rights, and only things over which a conflict of interest between different subjects can arise qualify as goods.

What are immaterial goods (beni immateriali)?

They are goods that cannot be touched physically but have economic value, such as credits.

What are the legal requirements and physical traits of immovable goods (beni immobili)?

They are naturally or artificially incorporated into the soil and cannot be moved without damage; their transfer of ownership must be recorded in the land registry (catasto immobiliare) and requires a written contract to be valid.

What characteristics define movable goods (beni mobili)?

They can be transferred from place to place, their transfer can occur with a simple handshake, and they generally have a more limited economic value compared to immovable goods.

What is an universality of goods (universalità di beni)?

It is a collection of goods that belong to a single person and are destined for the same common purpose; they can be sold either all together or individually.

What is the difference between divisible and indivisible goods?

Divisible goods can be divided into multiple parts without losing their economic value, whereas indivisible goods cannot be divided without losing value or are physically impossible to divide (e.g., paintings, live animals).

How do consumable goods differ from inconsumable goods?

Consumable goods are exhausted immediately upon being used (e.g., money), whereas inconsumable goods can be used repeatedly without being exhausted on first use (e.g., cars, televisions).

What is the distinction between fungible and infungible goods?

Fungible goods are qualitatively identical to other goods of the same kind so quantity matters more, while infungible goods are valued for their specific unique traits so quality matters more than quantity.

What is an appurtenance (pertinenza) and how can it be transferred?

It is an accessory thing destined to serve a principal thing; the owner may transfer the appurtenance together with the principal thing or separately.

What is the difference between natural fruits (frutti naturali) and civil fruits (frutti civili)?

Natural fruits come directly from the thing itself with or without human intervention, whereas civil fruits are derived from other goods through a legal relationship with another person.

What distinguishes public goods from private goods?

Public goods belong to the State, whereas private goods belong to private individuals and are under no constraint to satisfy general interests.

What is legal capacity (capacità giuridica) and what factors can limit it?

It is the capacity to hold active and passive legal situations, which is acquired at birth and can be limited in specific cases by age or psychological conditions.

What is the capacity to act (capacità d'agire)?

It is the capacity of a subject to determine their own legal situations through their own will.

How does legal capacity to act (capacità legale) differ from natural capacity (capacità naturale)?

Legal capacity is the legal ability to perform negotiable acts, whereas natural capacity is the capacity of understanding and willing (intendere e di volere) what one is doing at a specific moment.

Which specific rights are granted immediately at birth?

Personality rights (diritti della personalità) are the only rights attributed at birth.

What are the primary recognized conditions of incapacity to act?

Minor age (under 18 years), judicial interdiction (interdizione giudiziale for severe mental infirmity), and inabilitazione (for mental conditions less serious than interdiction).

What is an emancipated minor (minore emancipato)?

A minor who has reached 16 years of age and is legally authorized to marry, thereby acquiring partial capacity to act.

What is a support administrator (amministratore di sostegno)?

A protective figure requested from a judge for someone with mental infirmity; the judge reviews the case, appoints the administrator, and defines the duration of their role.

Which subjects fall under absolute incapacity versus relative incapacity, and who is appointed to assist them?

Absolute incapacity applies to minors and interdicted persons, who are assigned a guardian (tutore); relative incapacity applies to inabilitati and emancipated minors, who are assigned a curator (curatore).

How are acts of extraordinary administration handled by inabilitati compared to emancipated minors?

An inabilitato must be assisted by their curator, whereas an emancipated minor must obtain both the consent of the curator and the authorization of the judge.

What are the rules regarding commercial enterprise acts for relatively incapable persons?

An inabilitato can only continue an already existing business, whereas an emancipated minor can start a brand new business or continue an existing one, upon authorization.

When does incapacity to act officially cease for minors, interdicted/inabilitati persons, and legally interdicted persons?

For minors, when turning 18; for interdicted and inabilitati persons, when recovery is legally verified; for legally interdicted persons (interdetto legale), when their criminal sentence ends.

What are the three legal stages following a person's disappearance and what happens at each stage?

1. Disappearance (scomparsa): a curator is appointed to manage the estate. 2. Absence (assenza): declared after 2 years without news, entrusting the estate to those who would inherit upon death. 3. Presumed death (morte presunta): declared after 10 years, applying the exact same rules as actual death.

How do residence (residenza), domicile (domicilio), and abode (dimora) differ from each other?

Residence is where a person habitually lives; domicile is where a person conducts affairs (which can be general, special, or legal); abode is where a person stays during a specific period of the year for a duration that is neither very long nor very short.

What is citizenship and what legal status do foreigners have under Article 10 of the Italian Constitution?

Citizenship binds an individual to the legal order and its laws. Under Article 10, foreigners possess private law capacity and fundamental human rights, but lack public law capacity (such as the right to vote).

What are the four official types of civil status acts (atti dello stato civile)?

Birth (nascita), marriage (matrimonio), death (morte), and citizenship (cittadinanza).