LAW - MODULE 1 (PRIVATE LAW).pdf

What is a Rule of Law? It's a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: just law, open government, and accessible and impartial justice. The rule of law is a political ideal that all citizens and institutions within a country, sta...

What is a Rule of Law? It's a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: just law, open government, and accessible and impartial justice. The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". A rule of law is something that is applied in order to solve a conflict. It's the constitutional principle, which refers to the equal dignity of every person before the law and protects it from any form of arbitrary decision that may infringe fundamental rights. Paul gets into an Art center and buys a painting for $5000 but asks to leave it there and pick it up later. Bill later asks to purchase the painting for $30,000. What would the seller do? Sell to Bill. The seller agrees and gives the painting to Bill. Bill bumps into Paul – who gets to keep the painting? Note -- neither Paul nor Bill is to blame, only the seller. Art. 1153 Civil Code [CC] -Effects of acquisition of possession Any person to whom movables are transferred by another person who is not the owner of that movable becomes owner by way of possession, provided they are in good faith at the time of transfer, the movable is delivered, and there is an appropriate title for transfer of ownership. three requirements should be necessarily met and verified immediately: 1. purchase made in good faith = the buyer doesn't know if the seller has the right to sell 2. the movable should be delivered, "delivery" = the buyer does not prevail if he doesn't pick up the goods. the buyer needs to have physical retention which means having the ability to keep or continue having sth. 3. there's an appropriate title = the buyer has a "title" to purchase because "the sale" is (in principle) an appropriate "title" to transfer ownership Movable property (the painting) does not require a written contract to transfer property. There is no requirement to physically transfer the property for the ownership to change. The payment does not have to have occurred; a binding agreement is sufficient. However, by the “effects of acquisition of possession”, as long as the buyer is in good faith, the movable is delivered to him and there is an appropriate title for the transfer of ownership, Bill becomes the owner by way of possession. The solution provided by the legal system considers the "easy circulation of wealth" as an interest to be protected by the law. With such a statement, the legal system provides a solution to the dispute between Bill and Paul and imposes a code of conduct to secure the future composition of similar disputes. 1  The Legal system and Legal Provisions with their Structure The purpose of rules-norms is to direct humans to adopt a certain pattern of behavior in order for them to become “normal”. A rule is a statement that DIRECTS human conduct. It may stipulate that particular conduct is compulsory (duty to act), prohibited or lawful (permitted). Different types of rules exist: a. Personal: seeks to regulate conduct of a specific person or group b. Factual: covers one or more factually specified situations c. General: directs whoever may find himself in a specified situation d. Abstract: covers any situation that repeats the one envisioned Legal provisions means all statutes, laws, ordinances, rules, regulations, orders and decrees of any Governmental Entity. Art. 2 CC - Majority of age. Capacity to act Majority is fixed at the age of eighteen. Majority of age gives access to the capacity to perform any act for which no other age is required. Art. 1498, subsection 2, CC-Payment of price In the absence of accord and where no customs apply, payment must be made at the time of delivery and where said delivery shall be performed. Art. 2043 CC-Compensation for an unlawful act Any deliberate or culpable act that causes unjust damage to others obliges the person who committed the act to compensate for the damage. 1. The main characteristic of the legal rule is that is abstract: it indicates a certain conduct valid for any number of situations. 2. For every occurrence (if…), the rule of law sets out a specific effect (then…) - IF+THEM A situation or occurrence coming under a rule of law is referred to as a "base situation". For each single occurrence (referred to as base situation) (if…) the rule of law sets out the specific “legal effect” (then…); usually defines a conduct as lawful, compulsory or prohibited. Complex-base situations: when the base-situation comprises several distinct factual elements, all of which are necessary. A legal system can be described as a complexity of legal rules that make a uniform and orderly set, paving the way for the organization of society. What is “legal” is only what the system has defined as such and are rules which come from traceable sources. 2  Sources of Law in the Italian Legal System The Italian Constitution (since 1948) is the primary source of law in Italy. It lays down the fundamental rights and duties towards the Republic and towards society. Sources of The Italian Legal system: 1. Ordinary law - Statutes or acts of Parliament - Legislative decrees and decree laws (solely in situations of extraordinary necessity and urgency) – must have a specific objective, a limited period of time and have guiding principles and standards fixed by the Parliament. - Regional laws and laws of autonomous provinces (Trento and Bolzano) - Referendums - A referendum may not introduce new laws only reappeal existing ones 2. Domestic Regulations: known as delegate or subordinate legislation. May be issued by council Ministers, ministries, regions, provinces, municipalities or “watchdog agencies” (Bank of Italy). 3. Customs: Lowest source of law. It is the only “non-written” source of law in civil law counties. You can be penalized for not abiding by a custom. Principle of hierarchy of sources of the italian legislative system: Resolving disputes between sources of law - Hierarchy of sources applies, a source of higher rank prevails over a lower one - When of equal rank, a newer source prevails over the previous (=presumption of implicit repeal. The Treaty on the Functioning of the European Union is one of two treaties forming the constitutional basis of the European Union (EU). The TFEU sets out organisational and functional details of the EU. It is above every other source and comprehends the pyramid. According to the Principle of Precedence of European Law, European law is superior to the national laws of Member States. The European Union Sources prevail over ordinary domestic law, domestic regulations and customs. 3  1. The Constitution, constitutional laws. 2. EU regulations and Norms deriving from international treaties. 3. Ordinary laws, the regional laws and those of the autonomous provinces of Trento and Bolzano. 4. Government regulations, follow the ministerial, administrative and prefectural regulations and other territorial public bodies (regional, provincial and municipal). 5. Uses and habits. two fundamental principles in the legal system: 1. hierarchy of sources: a lower source may not conflict (rule adversely to) with a higher source 2. when of equal weight (the two laws considered), the subsequent source prevails over the previous one Legislative measures equivalent to ordinary law are Codes (Civil Code, Criminal Code etc.) CUSTOMS Two distinct features must be present: 1. a determined conduct repeated in time and shared by the members of a distinct community 2. the conviction that the conduct corresponds to a duty under the law custom is the only non-written source of law in civil law countries (ex: leaving a tip to the waiter) three kinds of relationship between law and custom - custom secundum legem: ("following the law") this is a custom which is expressly recognized within the law and which becomes valid as soon as the legislation allows it to operate. - custom praeter legem: ("next to the law") this type of custom arises spontaneously at the margin of legal dispositions, completing the legal gaps in cases of unregulated matters or matters deficiently regulated by the law. Custom is said to be praeter legem when it fills gaps in written laws or when it is used to supplement existing laws. In other words, custom can be recognized as a source of law when it is not in direct conflict with written laws but rather complements them. One of the key aspects of praeter legem is that it reflects the dynamic nature of legal systems. As societies evolve and change, customs may develop to address new situations or concerns that are not covered by existing laws. In this way, custom can play a crucial role in adapting legal systems to meet the needs of society. - custom contra legem: ("against the law") it is defined as custom which negates a rule of law. The ordinary court will decide against the custom, if held to be in conflict with ordinary law. It is not within the jurisdiction of the Constitutional Court. 4  Interpretations of Legal Provisions Legal provisions means all statutes, laws, ordinances, rules, regulations, orders and decrees of any Governmental Entity. The interpretation refers to the process by which a certain rule takes on a particular meaning. "Identifying the meaning” is necessarily limited to the interpretations that fall within the bounds of what is consistent with the text being interpreted (obviously can have more meanings, but we choose the most relevant according to context); and should be done according to non-arbitrary criteria (reasonable criteria). 1. Literal Interpretation: to a single word corresponds a single “proper meaning”, although realistically that isn’t true; the meaning of the word depends on the given context. It is not open to different interpretations. Art. 2 CC-Age of majority. Capacity to act Majority is fixed at the age of eighteen. Majority of age gives access to the capacity to perform any act for which no other age is required. 2. Extensive interpretation: reaches out beyond literal sense. The extensive interpretation: It means looking beyond the literal words and applying the law to cases that may not fit exactly within its wording. Art. 3 Constitution: All citizens have equal social dignity and are equal under the law, regardless of sex, race, language, religion, political creed, personal and social level. The literal meaning of citizens is "the italians", however this applies to everyone in the country also foreigners. The meaning of a provision reaches out beyond its literal sense. There's an extensive interpretation. 3. Restrictive interpretation: (opp. to extensive) application of provision is stricter than literal sense. The application of the Provision is stricter than the Provision literal sense. Art. 2054, paragraph 3, CC-Circulation of vehicles The owner of the vehicle, has equal liability with the driver if the former cannot prove that the vehicle’s transit occurred against their will. Paul denies Peter permission to drive his car and takes the battery out. In order to ensure uniformity in juridical interpretation the litigants may resort to the Corte di Cassazione whose judgement contribute to the harmonization of different interpretations. 5  Recourse to Analogy It may occur that a base situation (fattispecie) has not been ruled by the legal systems: it is then necessary to find the rule of law to be applied. Legal systems resort to analogy, which means that a similar rule of law is applied to a base situation not ruled by the legal system ("recourse to analogy"). Analogy in law is a method of resolving issues on which there is no previous authority by using argument from analogy. Analogy in general involves an inference drawn from one particular situation to another based on similarity, but legal analogy is distinguished by the need to use a legally relevant basis for drawing an analogy between two situations. There must be a gap in the legal system to have a recourse to analogy. 1. identify the gap in the system 2. determine the specific purpose of the provision 3. does it apply to the case? 4. refer to a similar provision Art. 1783, CC–Responsibility for things brought into hotels Hotel-keepers are liable for any deterioration, loss, or theft of things taken into the hotel by guests. Liability provided by this article is limited to value of what has been deteriorated/lost/stolen, up to an equivalent of one hundred times the price of rental of the accommodation/day. This provision is applied by recourse to analogy to camping sites, although diff. situations. BUT it depends. - If the aim of the law was to compensate hotel guest who suffered a loss as a consequence of theft (for something that was presumably lost); this does not apply to a campsite. - If the aim of the law was to ensure that whoever is away from home has a safe repository for things carried with them: no diff. between hotel and camping site. Roman Law: (Dig., b. IX, sect. I) The owner of a quadruped is liable for any damage it causes. What happens if an ostrich causes damage? The law cannot be interpreted extensively because there is no way that Ostrich can be “subsumed” as a quadruped. There is recourse to analogy; it is assumed that the law aims to cover all damage caused by “animals”. 6 where do extensive interpretation and interpretation by analogy converge and diverge? both are founded on ratio legis, they deal with a case that is not explicitly regulated by a legal provision, that does not fall under its standard meaning, but needs to be regulated. They also have the same practical outcome, because they extend the regulation to the case in hands. However, when a case is ruled by extensive interpretation it falls under the "literal meaning" (critical) of the provision that applies to it. On the other hand, using analogy presupposes that the law falls short, no provision is directly applicable. Analogical reasoning presupposes a gap, which is absent in extensive interpretation. restrictions of the recourse to analogy: - criminal provisions: in every legal system, criminal provisions cannot be subject to application by analogy ("nulla pena sine lege"). This does not apply to extensive interpretation. - extraordinary provisions: cannot be subject to application by analogy. Private law is founded on the general principle that, unless stated otherwise, no person may take the law into their own hands. Art. 2756 CC -Claims for services and expenses … [The creditor]…for services and costs in connection with the conservation and improvement of movable property has a privilege on such property. Granted that the law falls short, may Art. 2756, CC be applied by analogy to the plumber who has a claim against the owner of immovable property? It cannot be applied by analogy because it is clearly stated that the property is immovable. There's no similarity shown. Private law is founded on the general principle that – unless stated otherwise – no person may take the law into their own hands.. 7  Legal Capacity & Capacity to Act Two spouses have one only child, they own jointly a controlling stake in a large corporation as long as considerable immovable property. They both suddenly die. What happens to the wealth of the spouses? Does the 4-years-old child have control on such wealth? - who is entitled to rights and duties? - who may be vested with rights and duties? In private law these two questions are covered by the following notions: 1. legal capacity (capacità giuridica): entitlement to rights and duties (corresponding to the notion of legal person) originates at birth. 2. capacity to act (capacità di agire): entitlement of the legal person to fulfil acts under the law, to exercise rights and duties arises at the age of majority. In practice, the most significant expression of such capacity to act is, above all, when a person enters into contractual relations: indeed, the capacity to act is a requisite for entering into a contract. LEGAL CAPACITY Legal Capacity is lodged indistinctly in all humans beings. The sole requisite to such legal status is birth. The condition known as "viability", the aptitude to continue living, is not requisite. Legal capacity is lodged even if then minutes after birth the newborn dies. The Italian legal system accepts testamentary dispositions in favor of the child-to-be (the person conceived). Also, dispositions in favor of unconceived persons are admissible, provided the beneficiary will be conceived by a person living at the time of the disposition. Example: Paul leaves his estate to the son of his son (his grandchild), not conceived yet at the time of making his will. Paul would not be in a position to leave his estate to his future great-grandchild. this is a compromise made by any legal system to prevent immovable and movable properties, that could be sold or transferred, to be inherited by next generations too far from the one at being, just because of entitlement. Why does the legal system lay down the principle that legal capacity is lodged in the person at birth so important? An husband and wife have a conspicuous estate. They conceive a child together. The husband three months later dies and the wife inherits the estate. Six months later, the wife dies as well, giving birth to the child. Three situations can occur: - the child is still-born: the entire estate of the wife passes to her relatives - the child is born: the entire estate of the wife passes to the child 8  - the child is born but ten minutes after dies: the wife's entire estate passes to the child. After the child's death, the estate passes to the heirs of the child, the relatives of both the spouses Legal capacity ends solely upon death. The notion of civil death no longer exists in the italian legal system, a person condemned to imprisonment is no longer subject to deprivation of legal capacity. Death is certified upon “irreversible cessation of all brain functions” Presumption of simultaneous death =if two persons die in the same circumstances, it is presumed they died at the exact moment. CAPACITY TO ACT The legal system presumes that no individual under 18 has the necessary physical and mental ability to assess the substantial implications of their actions. It is a legal fiction: it is of no importance under the law if there is, for instance, a precocious and brilliant 17-year-old perfectly capable of assessing the implications at law of their actions. what happens when an individual with no legal capacity to act enters a contract? the contract is voidable which means that a court may be called upon to cancel the contract. The legal system might provide the annulment of such contract in order to protect the contractual party with no capacity to act. Whether the contract is canceled or not, depends on the guardian. A guardian is appointed to make up for incapacity to act. The guardian is the legal representative. are there other individuals lacking the capacity to act, apart from minors? Incapacity to act could be absolute or relative: 1. "Judical interdiction": we speak of judical interdiction when the subject is declared by judgment unable to provide for his own interests because of a habitual mental infirmity; With persons with routinely impaired in their mental ability, the court issues judicial interdiction: relatives may submit a petition. Objective of protection as the aim of such law is to protect the individual. Can be revoked and must be issued by the Court. 2. "Interdiction at law": we speak of interdiction of law when the interdiction (prohibition) results in an accessory sentence of the imprisonment for life or imprisonment for a period not less than five years. The person has no capacity to act. Objective of sanction because it's in addition to the prison time. Looses right to manage his own assests. ABSOLUTE INCAPACITIES TO ACT: Incapacity of minors (incapacità per minore eta), Judicial Interdiction and Interdiction at law are forms of incapacities to act provided at law. In such cases, the persons lacking the capacity to act may not (validly) perform (almost) any act under the law. RELATIVE (partial) INCAPACITIES TO ACT: relative incapacity is that of persons who have limited capacity to act, that is they can still perform some minor acts selected by the judge, to protect their own interests. 9  1. emancipation: when a minor, at the age of 16, obtains permission from the Court to marry, he becomes "emancipated", that is, he acquires a certain freedom of action. His freedom, however, is only partial and not total, because while on the one hand can perform alone acts of ordinary administration, on the other hand cannot perform those of extraordinary administration, that is to say, take decisions of a certain weight. Acquisition of the capacity to act at the age of 18 also determinesthe capacity to marry. But a minor aged 16 may also, for "serious reason", obtain authorization to marry from the Court, even against the will of his or her parents. Granting of authorization to marry triggers automatically relative capacity to act known as emancipation. 2. limited conservatorship: it's a second case of relative incapacity to act related to an habitual mental impairment which is not deemed serious enough to have juridical interdiction. The Civil Code provides for 3 situations which are considered to be limited conservatorship: habitual abuse of alcohol or drugs, eccessive profligacy, blind or deaf-mute at birth if not supported by adequate education. In what sense do emancipation and limited conservatorship amount to relative incapacities to act? Acts of normal-ordinary administration may be validly fulfilled. Acts of extraordinary administration may not. example: if the emancipated or the person in a situation of limited conservatorship is the owner of a block of flats, some of which are rented, he may collect rents and dispose them freely or may underwrite contracts for the maintenance of the block (operations that fall within ordinary administration). However, they cannot decide to change the use of the block or sell it, give it away (operations that fall within extraordinary administration). They may not seek annulment of the acts once performed. what happens when a decision of extraordinary administration must be taken? - absolute incapacity: a guardian (tutore) is appointed to make up for the incapacity. He's the legal representative. - relative incapacity: a conservator (curatore) is appointed to provide assistance. In addition to the will of the person, the will of the conservator is necessary. 10  Natural Incapacity A person normally capable of action may be in a state of temporary incapacity which does not allow him to assess well the action he is about to take (for instance being uder the influence of an alcoholic beverage). It could happen that the person at the tome, made a promise or entered into a contract he could not understand or intend. in such case is it voidable=subject to annulment? - contract: it is voidable only and exclusively if the other party is in bad faith at the time of entering into contract, that is, they knew or could have reasonably known that the other party could not understand and intend. The requirement of bad faith of the other party isn't needed in the case of incapacities provided for by law. The aim of the law is to protect the other person in good faith, reliance on the validity of the contract is protected. ex1: "if you buy me a tequila. I'll seel you my expendive watch" - unilateral act (declaration of will, no agreement): good faith cannot be invoked to seek annulment. It is sufficient that the act is seriously prejudical (harmful) to the person with natural incapacity, for the act to be voidable. ex2: "I promise to pay the person who'll find my dog 10k" Is any act-contract entered into a minor always voidable? ex: girl aged 9 buys food i a supermarket Art. 1389 CC -Capacity of the agent (rappresentante) and the principal (rappresentato) When the principal confers a power of representation, it is sufficient for the validity of a contract made by the agent that they can understand and intend, taking into account the nature and content of the contract and always provided that the principal has the capacity to act. principal-agent relationship when the principal empowers the agent to act on behalf of the principal. 11  The Right of Ownership Art. 832 CC - Content of the right The owner has the right to enjoy and dispose of things in a complete and exclusive way, within the limits of and observing the obligations established by the law. 1. enjoyment: material enjoyment 2. disposal: legal enjoyment which is also a form of enjoyment 3. fullness: the right of ownership i carried to the point of permitting the owner to decide to destroy a thing that they own 4. exclusivity: the right of the owner to exclude anyone else from the enjoyment of the thing (ex: the owner of a piece of property has the right to fence it to deny access to others). 5. limits & obligations: about the whole of the powers which compromise the right of ownership, the law applies a brake to what the owner may do. A property is things, objects, possessions that someone owns. Ownership is the legal right to possess and control a property. As a general rule, the owner is permitted to do anything that is not prohibited by the law. Art. 844 CC - Elements of interference (Immissioni) The owner of a piece of property may not obstruct the smoke or heat […] coming from a neighbouring property, if it does not exceed normal tolerability, having regard also to local conditions. In applying this law, the judicial authority must reconcile the needs of production with the rights of the owner. Account can be taken of the priority of a determined use. Local conditions: the yardstick for evaluation is different which means that also the tolerance required in an area (in terms of the town planning scheme) is. We could speak of a residential or industrial zone. Ownership & Production: noise pollution in the courtyard of an apartment block is evaluated differently depending on whether a workshop causes it rather than by a group of friends who, having formed a band, are practicing there. Production means economic activity (pub, disco). Priority of a determined use: the decision of a court will be different in the following cases: 1. isolation-reduction of the elements of interference = the person has lived in a house for 30 years then a carwash opens in front of the house. 2. compensation for damage = a person buys a new house and only after he moves into it, he does notice the problem caused by a nearby carwash which has been there for 10 years. 3. restoration to former state-cessation Art. 948, subsection 1, CC - Action of revendication = right to file a judicial action The owner can recover the thing from whoever has possession of it or is holding it and can prosecute the action even if that person, after the complaint has ceased to possess or to hold the thing. 12 ex1: In the sale of a painting, assuming that the owner of the art center sold the painting both to Paul and Bill, and neither Paul nor Bill picked up the painting, in case the seller refuses to hand it over to Paul the latter has to file an action of revendication to claim for it. ex2: If a person lends a book to a friend, and the (alleged) friend refuses to return it, the lender has to file an action of revendication to claim for it. 13  Ways to Acquire the Right of Ownership 1. by the original title: occupation, found movables and usucaption. 2. by derivative title: contract, succession. Art. 923 CC - Things capable of occupation (Cose suscettibili di occupazione) Movable things that no one owns can be acquired by occupation. These would be abandoned things and animals that are hunted or fished. two elements are necessary for occupation: a tangible element (material retention) & psychological element (animus occupandi). Art. 927 CC - Found Movables Whoever finds a movable thing must return it to the owner, and, if the finder does not know the owner, he or she must take it without delay to the mayor [specifically: the municipal lost property office] of the town in which the thing was found, explaining the circumstances in which it was found. Art. 929, subsection 1, CC - Acquisition of ownership of found movables If, after one year from advertisement of the found thing, the owner has not come forward, the movable or its price, if the circumstances required its sale, belongs to the finder. In essence, it concerns movables lost (not abandoned things). Example: If somebody finds a wallet on the footpath with € 300 in it, but no documents, it will be very difficult to claim that it is an abandoned (rather than a lost) thing. Obviously, the judgment as to whether the thing is lost rather than abandoned will depend on the circumstances of the case in point. what does acquisition (of ownership) by original title mean in the case of found movables? 14