Notes on ITALIAN PRIVATE LAW

ITALIAN PRIVATE LAW

Law is a set of rules that aim to regulate behavior, reconcile conflicting interests, and prevent/resolve conflicts. The current Italian law is the set of legal rules in force in Italy.

Structural Points of View of the Rule of Law:

  • A general pattern of regulation (generality of subjects) and abstract (generality of situations).
  • A provision backed by a negative consequence in the event of breach for the author of the provision, a negative consequence that has a satisfying function (it satisfies the injured interest), a compensatory function (it compensates for the damage caused), a punitive function (it imposes a sanction), and a deterrent function (it discourages behavior in the future).

For example, a rule stipulates that a buyer must pay, and a seller has the right to the price. If the buyer doesn't pay, it's a contract breach leading to compensation. This punishes the buyer, compensates the seller, and deters future breaches.

Key Legal Concepts

Subjective Right:

A position regulated by law, granting the owner abilities and sometimes duties. For example, a seller's right to payment implies a duty to care for the item.

Obligation:

A general situation imposing an omission on all subjects other than the right holder. For example, not hindering the owner's use of their property.

Burden/Onere:

The behavior a subject must adopt to use a faculty in their own interest. For example, notifying the seller of defects within a specific period.

Responsibility:

The position of those answering for a situation, submitting to negative consequences. For example, compensating for damage from a traffic accident.

Institution:

A set of rules governing a subject, such as property institutions.

Private vs. Public Law in Italy

Private law in Italy regulates economic and social interactions, placing parties on the same level with wide autonomy of choice, unlike public law.

Sources of Law

Sources of law are the acts that produce law, meaning legal norms and rules. A rule is derived from a source through interpretation.

  • The source is the article of the law, the norm is its meaning, understood via interpretation using hermeneutical criteria.

Legislators stipulate interpretation must give the meaning indicated by the correct meaning of the words according to their context and the legislator's intention. Standards of interpretation include:

  • Literal: Based on the text of the source.
  • According to legislator's intention: Understand the purpose/objective via legislative history and reports.
  • Evolutionary: Takes into account the evolution of general concepts.
  • Authentic: Interpretation given by the legislator themselves.

Legal Gaps and Interpretation

If no express rule exists for a case (a gap), analogy is used. Analogy applies a rule established for a similar case, but not to exceptional, special, or penal rules.

Extensive interpretation occurs when a rule with wide applicability regulates other cases within its scope; these rules are general principles.

Example: A general rule prevents a creditor from becoming the owner of a debtor's security to avoid exploitation. This extends to sales for security, where a person sells their thing as security for a loan.

Sources Can Operate in a Legal System

  • Acts of legislative bodies.
  • Cases (court decisions).
  • Doctrine (legal scholars' work).
  • Customs/Usages: Majority behavior observed with the conviction of legal obligation compliance.

All these sources operate in Italy.

Sources of Italian Law

The law is the main source, as the legislator is best placed to establish rules with desired generality.

  1. Constitution: Affirms rules relating to civil relations (equality, private property with social function).
  2. Civil Code: A law of 1942 with the value of an ordinary law consisting of almost 3000 articles divided into 6 books containing civil and commercial rules.
  3. Subordinate Regulations: They cannot contradict the law. Lay down rules for applying the laws. Such as ministerial regulations.
  4. Courts: Formally apply rules of acts but also serve as a source of law by specifying and clarifying the content and scope of rules in dispute resolution. There are many courts of I instance or tribunal. The judgment of a tribunal can be appealed before the Court of Appeal, and the judgment can be appealed to the Supreme Court but only on points of interpretation of procedural or substantive rules. The decision of one court does not bind another court but has a persuasive value.
  5. Doctrine: Scholars' work, not binding, but trains those applying the law and proposes new solutions for legislators and courts.
  6. Custom: Path of analysis starts from legislative text, examines cases/doctrinal construction, and customary rules.

Applicable Law (International Matters)

Italian private law regulates internal relations. International matters involve different states and potentially different laws. Private international law identifies the applicable law.

Example: An Italian marries a Frenchwoman in Madrid, then they move to Greece. Private international law determines which law governs their economic relations.

In Italy, private international law is in Law no. 218 of 1995, which indicates the applicable law for each international case.

The international contract (between parties in different countries) is a particularly important international event because the applicable law is fundamental because it determines the mandatory rules (the rules that apply in any case, even if the parties have chosen otherwise) and the nonmandatory (supplementary) rules (the rules that apply in the absence of a different choice by the parties).

The rules for determining the rules applicable to the international contract are governed by a European regulation, Regulation 593 of 2008.

International Contract Law

The international contract is primarily governed by the law chosen by the parties via a contractual clause. Each party proposes its law; the stronger party's proposal succeeds. If parties are equal, a third country's law may be chosen.

The parties can choose both national law and the lex mercatoria (international conventions, general principles, international cases, customs). The lex mercatoria is a body of rules made up of the provisions of international conventions on the subject, general principles common to the legal systems of the civil and common law families, rules established by international cases and rules dictated by custom. But lex mercatoria is a less comprehensive body of rules than state law.

The parties' choice will still be subject to international public policy rules and necessary application rules of the court's law, even if another law is chosen. These protect vulnerable persons, like in employment contracts or consumer protection.

Complementary Criteria

Without a choice by the parties, the Regulation indicates the law applicable to the international contract.

  • Sale of goods: The law of the seller's habitual residence.
  • Provision of services: The law of the service provider's habitual residence.
  • Contracts relating to a right in rem in immovable property: the law of the country in which the property is situated.
  • Franchise: The law of the franchisee's habitual residence.
  • Distribution contract: The law of the distributor's habitual residence.
  • Consumer contract: The law of the consumer's habitual residence.

The law of the country where the party responsible for the