Private Law PDF

INTRODUCTION WHAT IS THE PRIVATE LAW FOR? "Ordinary law" refers to laws enacted (emanate) by a country's legislative body, typically to regulate day-to- day matters, such as contracts, property, family law, and crimes. In Italy, the Civil Code (Codice Civile) is considered a part of ordin...

INTRODUCTION WHAT IS THE PRIVATE LAW FOR? "Ordinary law" refers to laws enacted (emanate) by a country's legislative body, typically to regulate day-to- day matters, such as contracts, property, family law, and crimes. In Italy, the Civil Code (Codice Civile) is considered a part of ordinary law. It provides the legal framework for private matters such as contracts, property, family, and inheritance law. The Italian Civil Code is a comprehensive set of laws designed to cover most private law matters, and it falls under the civil law system, as opposed to the common law system found in countries like the UK and the US. Ordinary Law is the overarching term for all laws passed by a legislature, whereas private law is a part of ordinary law focused on relationships between individuals. Private Law governs individual matters, while ordinary law can encompass both private law and public law(e.g., constitutional law, criminal law). Private law is a branch of law that deals with legal relationships and disputes between private individuals or entities, rather than the government or state. It governs matters like contracts, property ownership, family relations, and obligations that arise from private agreements. The focus of private law is on ensuring that individuals or businesses can interact with each other in ways that are fair and legally enforceable. Main Areas of Private Law: 1. Contract Law: Governs agreements between individuals or businesses, ensuring they are upheld according to the agreed terms. 2. Property Law: Relates to ownership and use of both personal and real property (land and buildings). 3. Family Law: Covers matters such as marriage, divorce, child custody, and inheritance. 4. Tort Law: Deals with civil wrongs like negligence, defamation, and personal injury, where one party may sue another for damages. 5. Commercial Law: Covers the rules and practices regarding business activities, like sales, trade, and consumer protection. Example: If two people sign a contract to buy and sell goods, and one party fails to meet their obligations, private law provides the legal framework for the aggrieved party to seek remedy (such as enforcing the contract or seeking compensation). In essence, private law aims to regulate relationships and resolve disputes between individuals in a way that upholds their rights and duties within society. Economics cannot work without private law and law in general For example a manager or a entrepreneur want to buy a company that is for sale, we need a lawyer. In order to achieve this goal, we need a contract and juridical act. A good manager need to know the fundamental of private law otherwise you can not manage your company. We will talk about Italian and European private law, starting form Italian we take into account also Spanish law or French law, not English or American law. We all have different juridical system. Continental legal system that is synonym of civil code. When we talk about English or American law we are talking about common law and they have a very different system because: In civil code system the main focus in on the states/ordinary law In common law prospective the main focus is on jurisprudence. Juridical system is not base on states but on judgment for example in Italian or German private law we have civil code in UK or in USA we don’t have civil code because several rules that are written in our civil code in UK are provided by judgment and not states or ordinary law. CIVIC CODE VS COMMON LAW 1 di 15  In Italian private law we have civil code like Germany and Spain but in USA not because many laws in UK are provided by judge and not state. Different legal system. Subject right doesn’t exist in UK or USA. Subject right is a topic taught in German or Italian law. Common law is the one used in UK and USA, the focus is on the judgments and those countries do not have civil code Civil law is very different because the focus is on the laws. Without law, economics cannot work. Living together is impossible without law, private law. Private law is the device of justice, answer to the need of justice in our human earth. This need of justice is not related just to criminal law. Private law is the law that provide for the relationship between citizens instead criminal law is related to citizens and states. Thomas Hobbs claim that law is necessary because human beings cannot live together and in peace without law. The idea of Hobbs is that law limits our freedom. Only solution to face the statue of nature (war of all against all) is an authoritarian king. Freedom in dangerous for him. ▪ Goal of private law is not limit/burdens our freedom. ▪ Thank to contract people feel momentary happiness, can enjoy the match of inter or buy a Michael kors. Without contract human happiness is not possible. From this point of view contract is a device for happiness. ▪ Thanks to private law we can live excitement moment. A manager that close a project/operation is happy and the legal device that allow him to close the contract is private law. Private law is useful for our wishes, satisfy our wishes and achieve our goals. We use it every day and more times in a same day. Private law is daily life law. ▪ When we use a train we make a contract. Private law is used every day rather than criminal law. Both are related to justice. AT THE CORE OF PRIVATE LAW LIES THE VALUE THAT SOCIETY WANTS TO PLACE UPON PEOPLE TO ACHIEVE THEIR OWN INDIVIDUAL GOALS WITHOUT THE NEED FOR AUTHORISATION BY OTHER PEOPLE OR THE STATE” To summarise the idea of this phrase is that private law is that it is a device to achieve our private goal, not limit our freedom. Private law is link to human rights because the goal of private law is to protect, satisfy, enjoy our human rights. Human rights are like freedom to speech, to live, to get married, health, education. If we don’t use private law we can not enjoy human rights. If we traduce the Italian constitution into English we could see that there some differences regarding meaning: The Italian Republic recognises and guarantees rights of human beings, both as individuals and in social groups where their personality takes place, and requires fulfilment of mandatory duties of political, economic and social solidarity. The Republic acknowledges and guarantees the inviolable rights of man, both as an individual and within the social groups in which one’s personality is expressed. The Republic requires that the fundamental duties of political, economic and social solidarity be fulfilled. The rst one express the English values. The second one is the translation of Italian constitution into English expressing the Italian values. What is want to say is that the rst one is a better translation because the purpose is to convey the way of thinking of English man. The second one is only the translation word to word of Italian way of thinking, values, rights and law. Private law like our human right is not limitless but have burdens, this limits are called duties like labor, pay taxes, right to vote, respect others people right. We have duties and right. “THE STARTING POINT OF PRIVATE LAW LIES IN THE EXERCISE OF AUTONOMY BY INDIVIDUALS IT IS FAR FROM IT THAT AUTONOMY ALWAYS PREVAILS. […] PRIVATE LAW HAS SEVERAL HEARTS BEATING SIMULTANEOUSLY” Jan M. Smits – Advanced Introduction to Private Law 2 di 15 fi fi Human rights ends where other people human right begins. Private is like a universe where there are stars and planets (there are like human rights). They move and the more they move the more possible it is to collide with other corpse, there are less space. The fact is that there is not too many rights. Competition is good for the market. The companies face the challenge of competition, can collaborate or even buy other companies. With just one company, consumers are less satis ed because there is less choice. There is the Anti-trust law (legge sulla concorrenza) rules the relationship between company and ensure that every company can exercise his right to enter in a market, the right to private economic initial. With competition we are stimulating to do our best and better our product. Kant: We all have the same freedom but it ends where other people freedom begin, that is the idea of private law as well. We cannot exercise our rights if these damage/limit other people’s right. We have the same change to be the person that we want to be. Article 3 (dedicated to equality) "All citizens possess equal social dignity and are equal before the law, without distinction of sex, race, language, religion and political orientation, personal and social conditions. It is the duty of the Republic to remove economic and social obstacles which, by limiting the freedom and equality of citizens, prevent the full development of the natural person (user)and the actual participation of all workers in the political, economic and social organization of the country." Human right and duties are like 2 faces of the same coin and we need to nd a balance because if we have only rights there is someone who can not enjoy his right, only duties= no right. Private law try to nd a balance. LAW SOURCES Legal system (ordinamento) try to nd the balance between duties and right. It is crucial knowing that every legal system has its law sources. Law sources is where we can nd the rules of our society that we have to follow to live together, we can know the compulsory behavior from the legal point of view. There is a hierarchy, pyramids means that we have hierarchical principles. At the base is more important rather the other above. Customs cannot be against constitution or administration regulations. The importance is given by the position. Statutes->ordinary law Law sources is where we can nd the rules of our life as citizens or company or enterprises, we can know the necessary behaviour to stipulate a contact or set up a company or get married. The answers are in the law sources. They express the correct behaviour to do something that is related to private law. If we want to buy a company we need a contract but which type of contract? A formal contract or written contact? The answer is in our civil code (in UK there is not constitution but magna carta, in USA there a constitution but it's completely different, the law system is common law system indeed in stead we have civil law legal system). To face with criminal case we have to deal with not statues but cases law. This is the difference between civil law and common law. Criminal law in civil code is regulated by criminal code, in USA there is no system of criminal code but the rule of criminal law is provided by judgements/ cases law. The book of private law in UK and USA are book of cases law. Law sources in UK and in USA are different rather than in Italy and Germany etc.. 1. Eu regulations are legal acts promulgated by European union, immediately applicable in our legal system, they are like status for example we have an European regulation about privacy that have the 3 di 15 fi fi fi fi fi fi  same worth and value of our statues, we have to complain with what is written in EU regulation. Another legal act of European union is directive. Directive: they need another act to be approved, to be translated in statues or legislative degree, we cannot nd directive in law sources because they are not law sources, they are not applicable in our legal system. European system have the duty to transform directives into law sources. 1. Administrative regulation they are domestic regulation (different from EU regulation), we have legal act of our prime minister or minister in general which regulate more in deep what it is written in statues and EU regulation (what is written are general). It says something more in deep of what is provided in statues. An example is DPCM (covid time) was a legal act from prime minister. Privacy consent is something that is related to administration regulation 2. Custom is a small law sources because cannot be against what there is below. First feature is that it is a behaviour which is followed by a lot of people, second feature/condition is that people think that it is compulsory, third condition is that this custom is record by ordinary law. If you are a creditor you can't say that the partial ful lment is not for me and refuse it. If we have a custom that say that partial ful lment is allowed you creditor have to accept this partial ful lment. Article 11 81 of Italian civil code explain what a custom is. If we have only one feature or just two than custom in not an law sources Customs (or usages) are considered unwritten sources of law because, although they are not formally approved by a legislator, they regulate the behaviors of a community in a spontaneous and repetitive way over time. Society itself, through the use and repetition of certain practices, considers them binding. When a usage is recognized as legitimate or obligatory, it can become binding and carry the weight of a law. Examples of customs as a source of law: Commercial rights: some customs in trade or contracts between companies. Maritime law: historically, many rules regarding maritime law were based on customs recognized between nations. In summary, customs are considered sources of law because they re ect accepted and established norms of behavior within a community. Although they are not written, they are recognized as binding and, in some cases, can have the same force as formal laws If we have a statues which is against constitution we have declaration of Italian constitutional code saying that this statue is without effect. The collision between administration regulation and statues is regulated in another way. In case of con ict between customs and EU regulation come into play judgments/judge and not constitutional code. 1. Structure of the constitution Fundamental principle: dedicated to human rights (cannot be change/untouchable by parliament) Rights and duties of citizens (can be change by the parliament such as the third part) Organization of the republic (we have part dedicated to government, judiciary head of the state, parliament, by an historical point of view he have a lot of changes) 1. International agreements are along side constitution, same importance. International agreement is an agreement between states and something like a contract, aims at making a better world. Article 11 of our constitution deals with sovereignty. Thanks to them Italy like other state gives its power to an international institution for example (European union, NATO, Onu). An example of sovereignty limitations is currency because Italy doesn't have power to decide whether to use lira or euro. We had 2 WW for economic reasons and thanks to European union we have been having a time of peace. Its not happen a lot to have a con ict between constitution and international agreement but if it happen constitution prevail on international agreement. 1. Statues or ordinary law (Italian civil code is statues/ordinary law), statues are approved by the parliament. They are an outcome of the process lies by the constitution and some ordinary laws that consist in 4 steps: Approval by the 2 chamber of our parliament (senates and deputes), promulgation by head of the state who sign, 4 di 15 fi fi fi fl fl fl fi  publication in the of cial journal (we can nd it in ordinary law). That is necessary because without it we don’t know statues, if we have to comply with the statue we have to know about it. a period of 15 days to make compulsory the constitution that is called vacatio legis (we can nd it in ordinary law). Time necessary to comply this new rule. We have statues (leggi ordinarie) but also degreti legistrlativi e degreti legge (legislative degree and degrees law, not formal statue but the same worth as statues). TIME VALUE Private law is a daily life law and for this reason there is a complicated relation between time and the juridical system. In relation of time we have some time problem. We have different rules dedicated to the time from the subjective rights point of view. In private law, there is a close connection between time and law. Time plays a crucial role in the life of law, particularly in the process of creating and implementing statutes, which are laws passed by the legislative authority. In this context, we can explore the relationship between time and law from two perspectives: statutes (ordinary law) and subjective rights. TIME AND LAW We could see this relation (time and law) from: the subject right point of view statute/ordinary law point of view In case of statute we have a process, used for the coming into force of a statute, that consist of: 1. Approval (In Italy, for example, laws must be approved by both chambers of Parliament. However, in some countries like France or Germany, there is only one legislative chamber) 2. Promulgatio from the head of the state 3. Publication in the journal, making it publicly available. 4. Vacatio legis (after, the law is enforceable, and ignorance of the law is not considered an excuse for non-compliance) After it, the statue is binding. Once a law is in force, everyone, including citizens and company managers, is responsible for knowing and following the new rules. STATUE After the above-mentioned-process, we can see the connection between time and law thanks to 3 concepts: Repeal Irretroactive effects Succession in time REPEAL A statute can also lose its legal force through a process called repeal. So we have repeal (abbrogazione della legge, abrogation is Italian mix with English even if we can use it with EU regulation). Repeal means the law is not binding anymore, no effect anymore, no need to follow because we have a new statue/ordinary law. It happen when a statue closes its force. We can have 2 type of repeal made by parliament/legislator: 1. Silent repeal that involve 2 cases: ▪ Con ict ▪ Code 1. Express repeal In both case we have a new ordinary law due to other statue which repeals the old one. Another way is due to a referendum. The difference consist on the agent, who want to repeal a old statue: that could be the parliament/legislator (express and silent repeal) or people (abrogative referendum). EXPRESS We talk about the express repeal when we have a new statue, which expressly reveals/nulli es the previous one. 5 di 15 fl fi fi fi fi  It is written that the old one is not binding, instead in the silent repeal there is a new statue but it's not written that the previous one is repealed (so at the end we have a con ict) SILENT 1. We have a new ordinary law that say nothing about the previous statue (because we have more than one previous statue) and we have a con ict between the new statue and the previous one. Example: we have a statue that claim that a written form for stipulating a contract is needed, but now we have a statue that say that it not necessary a written form. It a con ict, the new one win. 2. New statue that provide for all matter related to the situation. For the environment we had 50 statue dedicated to environment, now we have an environmental code (in this code we can nd everything about environmental matter, the previous statues are repealed because now we have a code/ a statue that sum up the old ones). So now we have a code that covers an entire legal matter, replacing numerous previous statutes on the same subject. REFERENDUM Other kind of repeal is abrogative referendum, which is initiated by the people rather than the legislature (in Italy people can propose the repeal of a statue through a referendum. In order to have a referendum we have: We need 500.000 citizens in favour, who ask that the referendum take place We need the check/validation of court of cassation, check if the signature are genuine Participation of the referendum of 50%+1 people eligible to vote/voters Then we referendum is valued. The votes in favour are more than 50%+1 If we have all the third condition but the majority vote no then the statue is not repealed. IRRETROACTIVE EFFECT Laws typically do not have retroactive effects, meaning they apply only to actions or situations that occur after the law has been enacted. Irretroactive effects: apply only for the future, it is applicable only for cases coming after. Example: there is a law relating to purchase that say that written form is not needed, now there is a statue that say that written form is necessary. The contract stipulated in the past are still valid, the new statue cannot touch all the cases in the past but dedicated only for the future. Civil statute may have irretroactive effect. For example a rm needs money, ask for credit but the state doesn't have money so the credit is still valid also for the future. Mandatory only for criminal law because we live in democracy and we cannot accept that a behaviour that previously was not a crime now it is, that is not a democratic law. Article 25 of our constitution. You can have a ne only when you commit a crime, if the speed limit is chanced is not fare you have a ne for the previously speed limit. It is possible but not common that common law statue have irretroactive effect (possible to private law statue, forbidden for criminal law) SUCCESSION IN TIME Succession in time: this is the case when we have a statue which provides not immediately effect but in the future. We have transitional rules. We talk about succession in time only if we have statue that provide for long-term-effect and not immediately effect. During an amount of time we have a change of law. We ask for application of tax credit and the time limit is 3 years. In 2 years a new statue say that now the time limit is 1 years so you call your lawyer. You can nd the answer in transitional rules. Transitional rules help manage the change, ensuring there is no legal confusion about which law applies at a particular time. SUBJECTIVE RIGHTS In private law, a subjective right refers to a right granted to individual or better power to act in front of a court for the satisfaction of one's own individual interest, protected by the legal system. They can be: - In rem subjective right or absolute (ownership) - Non in rem subjective right or relative (right to credit) Ownership is an example of subjective rights. Another example is right to credit. This two are the most important, Right to credit when you claim for the coffee at the bar (right to performance) 6 di 15 fi fi fl fi fl fl fi fi Right to education is another example of subjective right Subjective rights Ownership right to credit If you are a creditor we need the cooperation of other people/speci c person that is the debtor. In case of ownership we can enjoy our right by our self, in case of right to credit we need the cooperation of one people in order to enjoy our right. By the technical point of law the judge say that the ownership is in rem subjective right (this means that in order to enjoy this right we don't need cooperation, performance of other people). If we are in a case that we need the cooperation of speci c person we are in non in rem subjective right. Ownership is a case of in rem, credit is non in rem (we need debtor). We have different law related to subjective rights: ✓ Limitation: loss of a subjective right (no ownership) due to inertia of its holder over a period of time (ordinary/short or long) ◦ Example: If you have a right to payment but fail to claim it for many years, you lose that right after a certain period (e.g., 10 years for ordinary rights). There could be a suspension of a limitation or interruption of limitation. ◦ Interruption: If you claim your right within the prescribed period (e.g., asking for payment), the clock resets, and you have a new period to claim it (another 10 years). ◦ Suspension: The limitation period may be paused in certain situations (e.g., if a former CEO returns to their position, the clock stops while they are the CEO, and restarts when they leave the position again). For example, if you are a CEO and shareholders have the right to claim compensation for your mismanagement, that right is suspended while you are still the CEO, since a company cannot claim compensation against its acting manager. ✓Adverse Possession: acquisition of a in rem subjective right (ownership) due to the use of it by a person like the owner over a (long) period of time For example if a person (e.g., a farmer) uses a piece of land as if they are the owner for 20 years, they can become the legal owner of that land, even if the original owner has a will stating otherwise. The key idea is that if the rightful owner does not assert their ownership for an extended period, the law recognises the possessor's right to the land. ✓Forfeiture: the loss of a non-in rem subjective right (f.e. credit) after a (short) period of time (due to the passage of time). UNLIKE the limitation, the holder’s behaviour is irrelevant. For example, in corporate law, a dissenting shareholder who disagrees with a company’s new direction (such as a change in business objectives) has a right to withdraw from the company and sell their shares. If this dissenting shareholder fails to exercise this right within the statutory period (say, 15 days), the right to withdraw is lost, and no further action can revive it. 1. Limitation (prescrizione): you can lose a subjective right because you do not enjoy it. In case of credit, you go to the bar but it is close so you cannot have your paid coffee. After 30 years the time to enjoy the coffees paid 30 yeas ago is lost. You cannot ask for a coffee anymore in this case. This cannot happened to the ownership. The limitation time is normally 10 years but it's depend on the enjoyment of the credit, if you don't enjoy it in 10 year you lose it but if you enjoy it in 10 years than it is (riaggiornato). In case of limitation we have 2 feature/condition which are: ◦ Inertia ◦ Time We can also have: suspension interruption 1. Forfeiture (decadenza): it's not possible for ownership. In case of forfeiture inertia is out of business, we have only 1 condition that is time, what you do with your right it doesn't matter. Right to 7 di 15 fi fi  withdraw: 15 days to enjoy right to withdraw. In case of forfeiture suspension and interruption is not possible. If you don't enjoy you lose it. -> Goal of limitation is to make law like reality, limitation is a legal device which tries to make equal for substance, to adapt the law to the reality. If you don't enjoy your right, you don't care it and then you lose it. Adapt private law to reality. -> Goal of forfeiture is to overcome a temporary situation. For example two shareholder think differently about the goal of the rm, one claim that the goal is sustainability the other pro t. So we have a problem in this enterprise, one shareholder can enjoy the right to withdraw. 1. Adverse possession (usu capione): limitation and forfeiture are dedicated to non in rem instead adverse possession to in rem. If we have a owner that doesn't use and enjoy his property and there is another person that use his property like that was the owner, after an amount of time the second one become the owner. This also happen when it comes to the will. It is just fare, right that you lose your eld INTERPRETATION Today we will deal wit 2 concept: Interpretation Analogy INTERPRETATION When we talk about interpretation we have to differentiate the case in point (fatti specie) and the hypothetical fact because they are 2 different things. Legal interpretation is often necessary when applying rules that may seem straightforward at rst glance but can become complex due to varying circumstances. A. Historical Interpretation vs. Law in Action Interpretation Historical Interpretation: This approach interprets the law based on the meaning of words and legal concepts when the law was originally enacted. Law in Action Interpretation: This approach interprets the law according to the current, modern- day meaning of words. Example: In 1942 (article 873), when the Italian Civil Code was approved, the term "building" likely didn’t include modern structures like a marquee. Under historical interpretation, a marquee would not be considered a building. However, under law in action interpretation, since marquees exist today, they may be considered buildings. B. Sectorial Interpretation vs. Systematic Interpretation Sectorial Interpretation: This interpretation limits the analysis to the speci c statute or section of the legal code where the rule appears, without considering other laws or legal sources (other systematic system like directive) Systematic Interpretation: This approach looks at the law in the context of the entire legal system, including newer statutes, regulations, and even the constitution, to nd a broader meaning. Example: Sectorial interpretation might only consider the Italian Civil Code and conclude that a marquee isn’t a building. Systematic interpretation might look at other laws or EU regulations and conclude that the meaning of "building" could include marquees. C. Literal Interpretation vs. Teleological Interpretation Literal Interpretation: This approach focuses on the exact, grammatical meaning of the words in the law. What does the dictionary say? What is the literal de nition of "building"? Teleological Interpretation: This approach considers the purpose or goal behind the law. It tries to understand what the law was meant to achieve. Example: A literal interpretation of "building" might exclude a marquee if it’s not explicitly de ned as such in a dictionary. If the dictionary de nition of "building" does not include marquees, then a marquee is not considered a building. A teleological interpretation would ask: Why does the law 8 di 15 fi fi fi fi fi fi fi fi fi  require a 3-meter distance between buildings? If the purpose is to ensure safety and space between structures, then a marquee might logically be considered a building under this goal. These three pairs of interpretations help judges and lawyers understand and apply the law in complex situations where the rules alone may not provide a clear answer. Choosing the Right Interpretation: The choice of interpretation depends on the context and the role of the interpreter. For example, a historian might prefer historical and sectorial interpretations, while a judge or lawyer might prefer law in action and systematic interpretations to provide a more practical, current application of the law. A good interpretation should align with the purpose of the rule and not be manipulated to t the preferences of the interpreter or their client. ANALOGY Gaps in the Law: Sometimes, there are situations or case in point where no speci c rule applies because it is a new case in point (legislator couldn't not consider or imagine this), leading to a legal gap. For example leasing contracts, which did not have speci c rules in Italian law until 2017. In such cases, legal practitioners must look for analogous rules or principles to apply. Leasing (contract) involves three parties: the user, the lender, and the producer. The user (doesn't have the money)requests/ask to the lender (f.e bank) to buy a product (e.g., a car), and the lender, as the owner, allows the user to employ the product under certain conditions. Before 2017, there were no speci c rules governing leasing contracts, so legal interpretation and analogy had to ll the gap in such situations. User doesn't have money, ask to lender (bank) to buy this car, lender buy car by the produced, the owner of the car is the lender and bought it because the user asked him to buy it. Lender has an obligation/obliged to let the user to enjoy the car thank to the paying of instalment (rata). This contact is a new contract, common law contract. In Italy or Spain or France we can not nd this type of contract, born in USA and then UK and now in Italy too. We don't have rules or ordinary law which provide for leasing Sometime we have the case in point that doesn't match any hypothetical situation (it's a case that hasn't been anticipated or covered by prior thinking or examples or pre-existing hypothetical scenario). There is some situation when there are hypothetical case but not the rule for it (the current real-life situation in front of us doesn't have a speci c rule that applies because it wasn't previously imagines so no rule was created for it). We have two types of analogy: Horizontal analogy or analogia legis for similar case or matters of similar nature Vertical analogy for general principles that inspires the state's legal system Forbidden for: criminal provisions (link to democracy) extraordinary provisions (link to ratio) CASE A Our case in point is: what happened if the user doesn't pay the instalment? We don't have a rule and the contract doesn't provide for this issue so we need a rule. In this case interpretation is useless. In case of gap (situation we don't have rule for our case in point) we can use the analogy, legal device that we can nd in all every legal system (also in common law) which aim to using the rule for a regulated case. We can nd a rule used for our case in point even if it is dedicated to other case in point (in this case hire purchase is a similar contract to leasing, in hire we have a person who need a good but doesn't have money so buy this good thank to instalment. In hire we have 2 people, in case of leasing we have 3 people). Retuning to the question, in hire purchase we have law 1525 in our civil code that say that if you don't pay a single instalment the contract is not valid anymore only if these instalment is more than 1/8 of all price (800 euro and we have 3 instalments, if the user doesn't pay the instalment that is more than 1/8 of total, the contract is over) 9 di 15 fi fi fi fi fi fi fi fi fi  From the practical point of view case in point are similar, we can enjoy the 1525 law used for hire purchase also for leasing. In this case we are looking for an ordinary law/rule useful for our unregulated case. We talk about the horizontal analogy (same level) CASE B Sometimes, happens there is no answer for our case in point. thinking about the duty of care, the very easy example, of a CEO duty of care. From a social point of view CEO have the duty of care (take care of the enterprise) but from a law point of view it is not true because we have a rule dedicated to the duty of care only for CEO of companies. And not for partnerships. Companies and partnerships means that società di capitale and società di persona (in this case the point is the people of this company and not money like società di azione) A manager of a partnership can behave not following the duty of care? Of course no but the point is that we don't have a rule. In case of companies, we have speci c articles dedicated to this duty of care. Company and partnership are different, we can not enjoy horizontal analogy but the vertical analogy. So in this case, we need to nd principles. Has the CEO of a partnership ful lled the duty of care? The answer is yes, but not thanks to horizontal analogy, but thanks to what I call vertical analogy, because we have to look up to the general principle and not to others ordinary rules (in this case a general principle dedicated to the duty), a manager of a partnership have to ful l the duty thanks to the vertical analogy. General principle is a law sources? No. Are they law sources? No, they are not. Because we can nd general principle into constitution, into EU regulation, into domestic regulation, International agreement. So, general principle are not law sources, but they are just for a gap. I. Criminal provision: For CEO of the company, in case of big mistake about money, you can go to prison. Would you be happy if as manager of a partnership you are going to prison because the judge says, okay, this rule is provided for company, but in my opinion, this is a rule very applicable also to partnership. Do you remember we said that criminal law cannot have retroactive effects because it is against democracy. We cannot go to prison for something for a behaviour which was not a crime when we committed it, when we had this conduct, right? Rule is applicable to the analogy as well. Because using analogy for criminal law would mean that you can go to prison although there is no rule which says that you have to go to prison for this behaviour. I. Extraordinary provision: Extraordinary law means that we have rule that is an exception, is a derogation of a general rule Imagine that we have rule which says provides that no taxes for one year to companies which employ single parent. Do you believe that we can use this rule also for single persons who is not parent? No, because the rule says that no taxes for companies which employ single parent. from the analogy point of view we cannot apply the rule dedicated to single parent to a single person because it is an exception. If we start to use an exception for other cases can we say that it is an exception? No. If we start to use, to enjoy an exception, an exceptional rule for other cases the outcome is this is not an exceptional rule anymore. Ok. So the idea of exception extraordinarily is against analogy. If we have a rule which is dedicated to a speci c case, a point of course we cannot enjoy analogy to use this rule for other cases because it is an extraordinary rule. So we can say that the rst reason of not using analogy (criminal) is linked to democracy. The second one linked on the ratio/purpose of extraordinary provision IN PIù We talk about rules that have consequence In ordinary law we have rules instead in constitution we have principle 10 di 15 fi fi fi fi fi fi fi  Why the debtor can ful l the performance/his duties? Juridical syllogism (if A then B, if your are a debtor and not ful l the performance, then there is a compensation, A is hypothetical fact [fatti specie affatta] and B is consequence/juridical aspect that follow A) LEGAL RELATION LEGAL RELATION We enjoy every day private law. There are 2 words that explain the relationship between people that live in a private legal system. That it legal relation. Legal relation is the relationship between two or more parties ruled by the legal system. This can have: 1. an economic nature 2. non-economic nature. Contract is a legal relation because in a contract we have at least two persons and it is a legal relation with economic purpose, economic nature (the goal of contract is an economic one). The focus of contract is on the economic point of view but in our society contract have also non economic aim/goal, in general contract is an economic legal relation. A week in Maldives is non economic but also a contract. Marriage is legal contract with non-economic nature because the focus is not and economic one. We have something related to economic (a house is a patrimonial and economic good) but at the end is non-economic nature. The nature depend on the legal system and also on the people involved. In the US legal system, we have types of legal relations that would be in Italian legal system non-economic and in US legal system they are economic. ACTIVE SUBJECTIVE SITUATION If we have a legal relation, we have normally an active body and a passive body. Which means that we have active subjective situations and passive subjective situations. We have an active party and an passive party so we have active subjective situation (we have someone can claim something from other people or bring something for other people) and passive subjective situation (we have someone who have not to do something or to do something). They are: 1. Subjective right (forfeiture, adverse, right to credit, ownership): power to act in front of a court for the satisfaction of one's own individual interest, protected by the legal system. We have subjective right if we have an interest protected by the legal system and not all the interest are protected (like love for inter, not claim compensation for moral damage. In case of car accident er can claim compensation for the damage and the value of the case but not for the personal care because it's not protected by the law). Two case of subjective right: ◦ Absolute right: in rem and example is ownership ◦ Relative subjective right: non in rem and an example is right to credit. The difference the 2 type in the cooperation with other people (debtor). Different than subjective right is letigima interest: power to claim a judicial review of a Public Body's behaviour Imagine you are a CEO and you want to apply for Public procurement (appalto). Each candidate have an legitima interest, if you are not the winner and the chose of public body is to other company. You believe that the choice was not made thanks to a correct process but due to corruption/bribery so you can claim in front of a tribunal to have a check to have a review of the behaviour the conduct of the public body. As a result we will have a new process, we don't have the right to win the public procurement but we have the right to have the check of this process, if it was fair/lawful. The point of legitima: right to a lawful process by public administration, in case of subjective right you have the right to enjoy something, in this case the right to fair process 11 di 15 fi fi  1. Power/of ce: power to act in front of a court for the satisfaction of another person's interest protected by the legal system You take care interest of other people. Example is manager/CEO that have the power/right in front of the court for the satisfaction of the company protected by the legal system. Another example is parents that have power related to their child. It depend on the person if take care of economic interest (we talk about of ce, f.e. CEO) and not economic interest (we talk about the power, f.e. parent) 1. Authority (facoltà): manifestation of a subjective right or power/of ce So if you have a subjective right or if you have power or of ce in relation to another person, you have authority. Article 841 is an example of authority, dedicated to ownership 1. Expectation: acquisition of a subjective right/power/of ce as long as a speci c event happens you have the choice to be CEO and the choice taken by the board must be register to public register. There is a time that is expectation, if we don't have the registration you are not a CEO from an legal point of view, in mid time we are in expectation. Then the registration you are CEO and have power. PASSIVE SUBJECTIVE SITUATION 1. Duty: refraining from m acts that may harm ither people's subjective legal situation. This is written in article 2043 that is the article dedicated to duty and compensation, if we have a duty which type of active subjective situation there are? Subjective right. Subjective right, but what kind of subjective right? Relative if we have an in rem subjective right/authority we don't need the cooperation of other people but they have a duty and this duty is that you cannot harm, for example, the good of other people. Can I use my smartphone to destroy your laptop? No, of course not. If we have absolutely right-> other have duty 1. Obligation: speci c behaviour that is functional, and so necessary, for the satisfaction of another person’s interest. Obligation mean cooperation, in case of right to credit, If we are debtors in this case we have obligation because we have to ful l the performance, it is link to relative non in rem subjective right. The owner of this right need cooperation. Our performance is a behaviour that is functional and so necessary for the satisfaction of another person's interest is an obligation. Relative right-> obligation and debtor (debtor must ful l the performance), it has an obligation not just a duty) Duty≠obligation, school duties are different than an obligation like money. 1. Onus (onere): speci c behaviour required for the achievement of a voluntary goal. The speci c behaviour is not binding from the legal point of view, we don't have nor obligation neither duty. In case of company is mandatory to make a registration so we have an obligation, in case of the registration a new CEO of a partnership it is not binding and not obliged. If you want this goal that other people know that your partnership has a new CEO, you have to make a registration. NATURAL PERSON The goal of private law is to satisfy our desire. The idea is that using private law, we can enjoy our life. The people who live private law can be natural person so a human being or arti cial person (enti and not persone giuridiche). The topic that prof that we are human being is the legal capacity. Legal capacity: ability to have rights and duties= you have a right to have something. When we have it we have a natural person so a human being, it is a capacity that every human being have, we cannot say from a law point of view that there is a human being without legal capacity. There is a link a between legal capacity and human being. Baby has legal capacity, after the birth we have it, a fetus doesn't have it. We apply legal capacity thanks to our birth. Is it not allowed to a democracy to provide a rule that saying that if happen this the person doesn't have his legal capacity. Every human being have it. Right of a babe is right to health, to education (duty to go to school). Legal capacity doesn't show our ability. 12 di 15 fi fi fi fi fi fi fi fi fi fi fi fi Different than legal capacity is capacity to act: ability to perform valid legal act Example of legal act are the ability to stipulate a contract with its value, marry another person, start an enterprise. We have a capacity related to build something, to do something as human beings, to create something, to be yourself, to be a wife, to be a husband, to be a manager, to found an association. Capacity to act means being able to achieve our life goals, to do something, to create something. Difference is legal capacity is the vision of human being from the passive point of view, the capacity is from the active point of view. The capacity to act start from the majority year and not from birth like legal capacity, a minor cannot conclude a valid legal acts or contract because thy don't have capacity to act. For the all day contracts like buying something we have the permission of parent, in this case we have presumption EMANCIPATION It is possible that before coming into age a minor have limited capacity to act and that is called emancipation. In this case we have an exception of capacity to act. Sometimes a minor can lawfully carry out legal act and we have 3 cases of emancipation: 1. Minor wants to get married with other person and need judge permission/authorization. Without capacity we can not married someone 2. Related to commercial activity, a minor can ask to judge to start a commercial activity, f.e. start a start up 3. Related to stipulation of a contract about a job, only if you satisfy your educational duty This are 3 types of goals. In this case we have a capacity to act limited to some speci c goals LIMITATION There is some cases in which, instead of exception of capacity to act we have limitation of capacity to act. In this case we have a person who is not minor but from a practical point of view this person does not have the capacity to fully provide for their own interest, they can not take care of themselves. In such case, every legal system, every European legal system and U.S. and U.K. legal system, has legal devices which aims at protecting these people. In other words, there is a need of protection for a person, because this person cannot take care of themselves and this is normally due to disability like Illness. We have a person who has legal capacity but limited capacity (not allowed a limitation of legal). There are 3 classical limitations (can be nd in every European legal system): 1. Judicial interdiction: the strongest one and in this case we have a person who is totally unable to take care of their self. We have 4 condition: Severe disability/illness Stability of this disability/illness Incapacity of the person to take care of their interest Need to protect this person The limitation can be temporary, it depends on the illness. Normally judicial interdiction is forever. There is no time limitation about judicial interdiction. It is not the same in limited conservatorship, either is for administration. Because the idea behind this limitation is not that the state has to do something wrong with this person. The idea is not this person is different than other person. The question is that this person, this people need protection. These are protection devices. In case of judicial interdiction, the person does not have capacity to help. This person cannot perform, cannot stipulate, cannot make valid legal acts. This person does not have capacity to help but has legal capacity. In this case we have a guardian, a person who has the capacity to help. The acts linked to daily life or ordinary mechanisms are made by the guardian without any other permission. In case of purchase of the building, in case of voting as a shareholder of the company, in this case, the willingness of the guardian is not enough. It is necessary the authorization, the permission of the judge. 13 di 15 fi fi  1. Limited conservatorship: there is a need of protection for a person, but in this case, we have a disability, an illness, that is not so serious as to make a person totally unable to look after, take care of their own illness. There is a limited incapacity of a person. Thinking about a person who use everyday drugs or abuse of alcohol, so to expose themselves or their families to serious economic harm. Or thinking about prodigality. When a person cannot manage their money, because they spend his whole money everyday for waste, for something which has no value. Or blindness and in Italy blindness leads to limited conservatorship if this person does not receive an education, which leads this person to be independent. It's not the blindness by itself. In this case, we have not the same situation of judicial intervention. We will have a person alongside the person who suffers of this disability or this psychological problem. The name of this person is not guardian, but curator. or daily life acts, the person is independent. The consent, the willingness of the curator is not necessary. So the person who received limited conservatorship can go to a shop, can go to buy something in a bar, can buy a ticket for a train. These acts are valid because they are acts related to ordinary administration. While in case of extraordinary administration, the consent, the willingness of the curator is necessary. So in case change of a building, we need the consent both of the person and the curator. To exercise the right to vote in a shareholders' meeting, we need the consent, the willingness both of the curator and the person. In case of marriage, after wedding it became an extraordinary administration act (just one time and not three time normally) Which is the difference between judicial interdiction and limited conservatorship? The rst one, there is the necessity to have the guardian and the judge. So in this case, in limited conservatorship, the judge is out of business, the tribunal is out of business. So in case of judicial interdiction, the person is out of business and we have guardian and tribunal. 1. Support administration: less strong legal device because the situation is different than in the rst two cases. We have a case that is not falling into judicial interdiction or limited conservatorship situation. We have a person that understand that he/she is not able to take care of themselves anymore. Thinking about an elderly person or a person that due to a surgical procedure will be unconsciousness for limited time. In this case the legal device is exible because we have not a distinction between ordinary and extraordinary administration. In this case we have a support administrator and he doesn't have to check about ordinary and extraordinary administration. The line which draws the difference between which is allowed and which is not allowed to the person is not ordinary and extraordinary administration. Because in this case, we have a judgment which has a list of acts that have to be done by the support administration. If we have a list and the list is composed by just one point, which is purchase the good X, the capacity to act of the support administrator is related only to purchase this building. For every other legal act, the person has a purely capacity to act. It is also the most exible because for an very elderly person the period od time of the support administration is forever, for an unconscious person after a surgery temporary. 1. Natural incapacity: There is a 4 case and we have a legal devise dedicated to a temporary inability to understand and intend. Takin into consideration a person who is drunk. She/he is so drunk that make a purchase or donate a good like a property. The questions is, this act is valis or it is not valid? It depends on the legal act. In case of donation it is not valid, invalid. In case of contract the answer is complicated because we have to check if this act is due to the fact that this person is drunk or not. In case of donation the act is always not valid, in case of contract it is not valis if it was rmed due to the temporary inability to understand the intent of the person 14 di 15 fl fl fi fi fi WHERE THE PERSON IS FORM A PRIVATE LAW POINT OF VIEW 1. Domicile: the place where he has established the main seat of his business or interests When you will be managers, the domicile will be the headquarter of your company. Because it will be the place where you have established the main seat of your business interest. We can talk about digital domicile, the so-called tech is a digital domicile. 1. Abode (dimora): the place where the person is currently located. If someone of you is, lives during the semester in collegio. Collegio is her abode. It is not his or her residence. 1. Residence: the place where the person has established his habitual abode Our home is our residence. Today our home is our residence and our domicile and maybe abode is collegio or when we go on holiday. It is important to know these places of a person. Sometimes it is necessary for a stipulation of a contract to write domicile, maybe to have a speci c domicile in the form of your lawyer, for example eligible domicile. 15 di 15 fi