Private law 7

How are contracts categorized within "legal acts" and what are the examples?

• Contracts belong to the general category of «legal act», which is divided into:

1. Unilateral (e.g., testament)

2. Bi- or pluri-lateral (e.g., contract)

What is the definition of a contract according to Art. 1321 c.c.?

An agreement between two or more parties to create, regulate or extinguish an economic legal relationship between them.

What are the two types of contract effects?

• Real effects -> transfer of property

• Personal effects -> create obligations, e.g., sale.

What is the «consensual principle»?

consent is sufficient (delivery is a consequential obligation)

What rule applies to movable assets in the case of multiple sales?

«Possession is nine tenths of the law»

What is required to prevail in multiple sales of immovable assets and registered chattels?

To be the first to give public notice of the purchase by means of transcription.

What types of contracts exist differently from real rights?

Typical and atypical contracts.

What is the 1st essential element of contracts according to Art. 1325 c.c.?

Agreement of the parties (the person who made the offer has knowledge of the other party’s acceptance)

What is the 2nd essential element of contracts according to Art. 1325 c.c.?

Cause (objective reason of the contract; it differs from motives)

What is the 3rd essential element of contracts according to Art. 1325 c.c.?

Object (content of the contract; it must be: - possible; - lawful; - ascertained or ascertainable)

What is the 4th essential element of contracts according to Art. 1325 c.c.?

Form (freedom of form with exceptions)

What is a "Term" according to the non-essential elements of the contract?

future and certain

What is a "Condition" according to the non-essential elements of the contract?

future and uncertain

What is a "VOID" invalidity according to the invalidity of the contract?

interest of general application (e.g., absence of one of the essential elements)

What is "VOIDABLE" invalidity according to the invalidity of the contract?

interest of only one of the parties [i) person lacking capacity; ii) contract in which consent is vitiated: a) mistake; b) fraud; c) duress]

What is voluntary representation?

A contract concluded by a representative in the name and in the interest of the principal, within the limits of the authority conferred, is directly enforceable vis-à-vis the principal (art. 1388 c.c.)

Which concept/legal act is linked with "Voluntary Representation"?

Power of attorney (procura)

How to resolve ambiguities and contradictions in the interpretation of contracts using the 1st approach?

«Subjective» criterion (intention of the parties)

How to resolve ambiguities and contradictions in the interpretation of contracts using the 2nd approach?

Good faith (art. 1366 c.c.)

How to resolve ambiguities and contradictions in the interpretation of contracts using the 3rd approach?

«Objective» criterion (e.g. when in doubt, clauses must be interpreted in such a way that gives them some effects rather than none; e.g. if more than one meaning, the most appropriate to the nature and object of the contract)

What is a "SALE" according to some «typical» contracts?

a person (seller) transfers to the other (purchaser) the onwerhsip of a real right against the payment of a sum of money (price)

What is an "EXCHANGE" according to some «typical» contracts?

thing-thing, rather than thing-price

What is a "GIFT" according to some «typical» contracts?

no price

What is a "CONTRACT FOR WORKS AND SERVICES" according to some «typical» contracts?

a person (the contractor) undertakes, organizing the necessary means and operating at its own risk, the performance of works and services for the benefit of the other (the client) in return for money

What is the definition of a "LEASE"?

a person (the lessor) grants another party (the lessee) the right to enjoy the use of real or personal property for a given time and specific consideration

What is a "RENTAL"?

when the asset produces things

What is a "FREE LOAN OF PROPERTY"?

no consideration

What is the definition of a "MANDATE"?

one party (representative) undertakes to perform one or more legal acts on behalf of the other (principal)

What is the definition of "OBLIGATIONS"?

relationship by virtue of which a person (the obligor) is obliged to render performance to another person (the obligee).

Which concept/legal act is linked with "OBLIGATIONS"?

Good faith (art. 1175 c.c.)

What are the 4 essential elements of obligations?

1 Active subject – creditor / obligee

2 Passive subject – debtor / obligor

3 Prestation – object / subject matter

4 Efficient cause – legal tie / vinculum

What are the sources of obligations under Art. 1173 c.c.?

1 CONTRACT (contractual liability)

2 TORT (extra-contractual or civil liability)

3 OTHER ACTS OR FACTS CONSIDERED BY LAW (e.g. unilateral acts)

What is the definition of "TORTS" under Art. 2043 c.c?

«Whoever commits an intentional or negligent act that causes unlawful harm to others is obliged to pay damages for the loss thereby caused» [No if: self-defence; state of necessity; exercise of a right; performance of a duty; consent of the entitled person]

What are the 3 types of PERFORMANCE?

1 Giving (e.g., money)

2 Doing (e.g., law services)

3 Not doing (e.g., not to compete)

[Possible, lawful, ascertained or ascertainable]

What are the key rules and concepts related to PAYMENT?

• Performance of pecuniary obligations

• Nominalistic principle (not applicable to so-called debts of value)

• Interests (legal or statutory interests and conventional interests)

• Prohibition of anatocism (interests on interests)

What are the two types of MULTI-SUBJECTIVE OBLIGATIONS (TWO ORE MORE FROM ACTIVE AND/OR PASSIVE SIDE)?

1 Several (the obligation is divided in 2, 3, etc.)

2 Joint (presumption of joint liability ex art. 1292 c.c.)

What is the 1st EXAMPLE of multi-subjective obligations?

• One creditor (A)

• Two debtors (B and C)

• Prestation is to give 100 euros to A (50 euros from B and 50 euros from C)

• The risk of insolvency of C (poor debtor) is on A (creditor, 50/100)

What is the 2nd EXAMPLE of multi-subjective obligations?

A JOINT OBLIGATION (PASSIVE SIDE) consisting of:

• One creditor (A)

• Two debtors (B and C)

• Prestation is to give 100 euros alternatively from B or C (no more than 100 euros)

• B pays 100 euros to A (satisfying A), and B can ask C for half back (50 euros)

• The risk of insolvency of C (poor debtor) is on B (rich debtor) and NOT on A (creditor, 100/100)