Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

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registered moveable property, where a prescription period operates (Arts 1159ff civil code).

Thus the acquisition of property from a non-owner entails a form of original and not derived title, because effective possession is of more significance than the ostensible form of transfer – delivery is, however, essential to give a legally valid commencement to the possession. The good faith of the possessor is also essential, backed up by an adequate form of transfer. Acquisition is clearly not possible if the purported transferor is merely a bailee, not in possession of the property.

The reason for these rules is that the law wishes to facilitate easy and rapid circulation of ownership of moveable property. It would be difficult for non-registrable moveable property which is subject to no special transfer requirements to prove every time it is assigned that the vendor is in fact the owner of the property. Transfer is not sufficient: delivery is also required. Then if the circumstances give rise to a presumption that the vendor is not the owner of the property, the penal provisions on handling stolen property are applied to different effect.

This provision is named possession is worth title, because possession in good faith serves to transfer title. Nonetheless, an adequate form of transfer, such as a sale, is required.

6.15.3. Prescription

To acquire ownership of property whose assignor is not the owner, three requirements must be met:

(a)the property must be moveable;

(b)an apparently adequate form of transfer;

(c)good faith.

If good faith is present but there is no apparently adequate form of transfer, ownership of moveable property and other tangible rights of enjoyment can be acquired after 10-years continuous possession (so-called abbreviated prescription: Art 1161 civil code).

If the property is immoveable, the possessor is in good faith and there is a duly registered form of transfer, ownership is acquired after 10-years continuous possession (Art 1159 civil code: abbreviated prescription).

In the absence of good faith, or if there is no adequate form of transfer, the possessor can acquire ownership after 20-years possession (Art 1158 civil code). This is known as ordinary prescription.

Particular rules govern prescription globally for moveable property, according to the same criteria as for immoveable property. For registered moveable property, abbreviated prescription takes three years, ordinary prescription 10. Ownership of rural land in mountain areas with

structures erected on it is acquired by 15-years’ continuous possession (ordinary prescription). A person who acquires rural land in mountain areas with structures erected on it in good faith, and where there is a duly registered form of transfer, acquires ownership five years from the date of registration (Art 1159bis civil code, introduced by law no. 346 of 1976).

Even possession in bad faith can benefit from prescription. The difference is that a longer period is required for ordinary prescription and is calculated only from such time as possession ceases to be by duress or clandestine (Art 1163 civil code).

A possessor in good faith can acquire ownership by abbreviated prescription even if he learns of the infringement of others’ rights after possession has begun and thus becomes possession in bad faith. This is the principle of presumption of good faith. The contrary does not apply, however. If a person begins to possess property in exercise of a minor right in rem he cannot acquire ownership by prescription after the relevant lapse of time if the ground for his possession is not converted by virtue of third-party intervention or a challenge to the owner (Art 1164 civil code in addition to Art 1141 civil code and shift of possession). The time needed for prescription runs from the conversion of grounds for possession.

Prescription is interrupted when the possessor is deprived of possession for a period greater than one year. To acquire by prescription, the time must start running again from zero (Art 1167(1) civil code). The interruption does not apply if an action for recovery of possession is pursued and possession recovered (Art 1167(2) civil code).

6.15.4. Actions in defence of possession

The civil code prescribes various forms of action for possession as well as for ownership. This does not exclude recourse to other forms of action, such as an action for damages as provided by Art 2043 civil code.

The prescribed forms of action have a specific ambit. Actions for recovery are appropriate to recover lost possession, while actions for abatement of nuisance serve to prevent interference with quiet possession and quia timet proceedings serve to prevent anticipated threats of this kind and anticipated acts prejudicial to possession.

These actions are, within their ambit, respectively possessory (actions for recovery and actions for abatement of nuisance) and quasi-possessory (quia timet proceedings). They are very frequently resorted to, because an owner in possession can also avail himself of them and they can be brought against the public administration if it has infringed the rights of others in misapplying authorised powers.

The object of the protection is the de facto exercise of the right to simple possession, and has no bearing on ownership; possession is protected even if it is wrongful or unlawful.

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6.15.4.1. Actions for recovery. Actions for recovery are brought by a person deprived of possession by duress or clandestine means. The action can also be brought by a bailee who has kept the property (typically a tenant) unless he has done so for reasons of service or hospitality (Art 1168 civil code). The prerequisites for this form of action are that one has been dispossessed (technically ejected) in a way that effectively prevents repossession, that the ouster was carried out with an intention to deprive the possessor of the property and that it has been done through duress or in a clandestine manner.

6.15.4.2. Actions for abatement of nuisance. Actions for abatement of nuisance are available to those who have suffered interference with possession of immoveable property or with the exercise of a property right over immoveable property or with a floating charge over moveable property (Art 1170 civil code). The action requires the claimant to have been in possession for at least one year and has not acquired it through duress or by clandestine means, or else that such duress or clandestine methods have ceased (Art 1170 civil code).

Interference is any actual or psychological conduct that expresses a will contrary to the possession of another. It can be an action (de facto harassment) such as a discharge, damage to the property or prevention of its use, or an interference with the right, such as when possession is contested or orders are given. In such cases we speak of an intention to harass (animus turbandi) but this psychological aspect is made manifest in acts of nuisance.

It should be noted that the action for abatement of nuisance serves to put a stop to the nuisance, but does not provide recompense. It does not result in the recovery of possession by the victim of the infringement: an action for recovery is required for this. When, however, the ejectment has been effected without duress or clandestine means (simple ejectment) the possessor may use an action for abatement of nuisance to recover possession (Art 1170(3) civil code).

6.15.4.3. Quia timet proceedings. The owner, the proprietor of another property right of enjoyment or the possessor who has reason to fear that new works such as the construction of a wall or a house or the digging of a ditch undertaken by another party on his land may damage the property he owns or possesses may challenge the work before the court (Art 1171 civil code).

The work must not, however, have been completed, nor have been underway for more than one year. The court may upon examination of the facts prohibit the work from continuing, or may authorise it subject

to conditions to prevent harm to the neighbour. If harm has already occurred, damages are payable.

Furthermore, the owner, the proprietor of another right of enjoyment in re aliena or the possessor who has reason to fear that any building, tree or other thing constitutes a danger of harm (apprehended harm) that is both serious and proximate to his property or right may challenge the cause of the danger before the court and, according to circumstances, obtain a remedy to remove the danger (Art 1172 civil code).

These two actions are also referred to as actions of ‘denunciation’ because they consist of a complaint to the court which has then to verify the allegation complained of. They are precautionary in nature, because the harm is in the future and uncertain: the danger is present, but may not result in actual harm.

The difference between the two lies in the fact that the former is directed against an immediate danger resulting from actual human activity taking place on the claimant’s or a neighbouring property, whereas the latter is connected with a pre-existing situation which represents a danger (for example, a dangerous old wall). Thus the former is an action brought against whoever is carrying out the works while the latter is brought against a neighbouring possessor or owner who, through omission, has neglected to prevent a situation that endangers the claimant’s interests.

Chapter VII:

Transactions and Contracts

7.1 The means of freedom of transaction

7.1.1. Terminology

In everyday language terms such as contract, agreement, understanding, promise, transaction, business, obligation, undertaking and covenant are used in loose and overlapping ways. In legal parlance, they each have a precise use and meaning. Specifically, promise means assumption of obligations by an individual in favour of others (unilateral promise); transaction is a historically determined concept expressing the autonomy of private individuals; obligation is the relationship between a debtor and his creditor; undertaking is a generic expression; understanding is commonly used to denote a preliminary contract; contract is the agreement between two or more parties to create, modify or extinguish a legal relationship (Art 1321 civil code); covenant is found in various set expressions (oppressive covenant, covenant for pre-emption, fiduciary covenant, covenant of redemption, and so on) and indicates a special agreement, usually consisting of a single clause; agreement can apply to any meeting of minds of legal significance, and is used fairly generically.

Contracts, and more generally legal transactions, are the means whereby individuals (and groups, such as associations and companies) undertake economic activities. There are also legal transactions without economic motives, such as marriage, but they are the exceptions.

Entering into a contract or promise signifies an individual’s intention to assume obligations. Thus, contract and promise are expressions of an individual’s will and autonomy.

7.1.2. Private autonomy and freedom of transaction

Autonomy (from the Greek autos and nomos) means ‘law which an individual applies to himself ’, within a regime of freedom and independence. Private autonomy means the freedom individuals enjoy, vis-à-vis the State, to regulate their own affairs. In a historical perspective, an analysis of the legal forms of private autonomy must be related to

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ideas of individual rights and the liberal State. Individual freedom of economic transaction is currently regulated by Art 41 of the Constitution.

Private autonomy means that individuals are free to undertake the activities they wish to, within the limits established by the legal order.

When we refer to autonomy we usually mean a particular form of autonomy, that of contract, also called transactional (negoziale, from Latin negotium, agreement). At the time of the nineteenth-century codifications, transactional autonomy was at its zenith. It was indeed held that the individual could express his will with complete freedom wherever the State was expected not to meddle (in economic relations). And contract, in the Anglo-American world view, was ‘sacred’, as untouchable as was property. The field of commercial relations, economic activity and contract generally was an area exempt from outside interference.

Private individuals were, it was said, free and equal in this respect. Free, because they could undertake whatever activities they wished without limits of any kind; equal, because the same freedom to contract was accorded to all. This myth concealed a falsehood: in the period of laissez-faire, the State abstained from intervention in the market, but thereby allowed the stronger to dominate the weak, as happened with labour contracts, considered by the standards of any other form of contract. Bourgeois society could not act otherwise, and the same outcomes were produced in quite different cultural contexts, such as the European and the American.

In this period the theory of the legal transaction arose. This theory posits in the abstract a system based on the individual will, embracing contracts and unilateral declarations, irrespective of content and indifferent to the position of the individual, whether rich, poor, strong, weak, professional or not, and so on. This construct derives from several prominent exponents of the German Historical School of the mid-nineteenth century, especially Friedrich von Savigny (1779–1861) and Bernard Windscheid (1817–1892), and had two central programmatic features: to rationalise the use of concepts and to provide a single framework for the rules on voluntary acts (including contracts and unilateral declarations). They sought to render the legal transaction neutral ideologically, detaching it from any influence that it may have come under from the economic content of the prestation, the social position of the participants or the circumstances of specific cases.

The idea of legal transaction was a very significant creation, originating in private law and extended (hence adapted) to procedural law by the device of the procedural legal transaction, now known as a judicial act, and to public law, both in the definition of the public law contract and above all in the theory of the administrative action which for many years was thought of as a species of ‘legal transaction’.

The idea of legal transaction performed the function of an abstraction which, insofar as it was not rooted in reality, served the purposes of the proprietorial class. It transferred elsewhere the principles which properly belonged to contract (as exchange) and at the same time shifted the focus from the moment of exchange, concentrating attention on the individual elements of the agreement (will, consideration, objects, etc). It was absent from the French code of 1804 and the Italian code of 1865, in both of which contracts, wills and gifts were treated separately. Legal transaction was, however, a feature of the 1900 German civil code.

But the unification of private and commercial law that was completed in the twentieth century brought with it a materialisation of agreements. Industrial mass production requires a flexible but certain instrument to facilitate the circulation of property. This instrument is not the legal transaction, a theoretical abstraction, but the contract.

The civil code of 1942 does indeed deal in general with contracts and not legal transactions. Article 1324 civil code provides that the rules on contract apply, as far as they are compatible, to inter vivos unilateral acts connected with property (acceptance of an estate, renunciation of an estate, unilateral promise, wills, etc).

In Italy, however, the theory of legal transactions has survived the codification of 1942. Academic and case law continue to invoke it, either to champion (in an anachronistic way) the individual will, based on an implicitly individualistic ideology, seeing the transaction as a ‘guarantee of citizens’ freedom’, or else for the sake of the values it implies and to exert a practical control over areas outside the scope of contract.

Recently, the concept of legal transactions, viewed from a historical and ideological point of view, has been dismantled. Its fundamental inclusiveness has been rejected in favour of returning a conceptual autonomy to the different manifestations of individual will it subsumed: wills, gifts and other gratuitous dispositions, unilateral promises and, finally, the various types of contract, all distinct from one another by virtue of their differing purposes.

It is a phenomenon encountered in other legal traditions. In North America, for example, one hears of the ‘death of the contract’, meaning the decline and replacement of the abstract theory of contract (of ‘transaction’ in Italian discourse), in which the parties are deemed to be on a completely equal footing and which celebrates the individual will.

7.1.3. From ‘will’ to ‘declaration’

Is a legal transaction an act of will or a declaration? The question may appear to be merely theoretical, but it has real practical significance because different legal consequences can follow depending on which theory is followed.

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The problem arose in the years following the codification of 1942 and has a historical importance today. According to the first theory the framers of the civil code had adopted the voluntarist theory which focused attention on the interior forming of the will or consent of the transactor. Testamentary disposition is a final act of will (Arts 692, 695, 1869 civil code). Gift is a contract in which the will to give (animus donandi) is of particular importance. The interpretation of a contract requires the common intentions of the parties to be ascertained (Art 1362 civil code). There seem to be many other instances where the civil code has embraced this theory. If this interpretation is accepted, the subjective elements, the actual will of the transactor, must be uppermost in evaluating the transaction, and consequently error, duress, fraud and misrepresentation – all the ways in which consent could be ‘distorted’ – become significant.

According to the other theory, the civil code embodies not the voluntarist, but the declarative theory. On this account, the most important thing is not what the transactor intended, but the external appearance, the manifestation of that will. So the test is what a person of normal diligence could be inferred, from reading or hearing the declaration, to have intended. Thus, in cases of sham transactions, the declaration takes precedence over the subjective will, and third parties can rely on what appears on the face of the deed (Art 1431 civil code). In interpreting contracts, regard is had to the ‘common’ intention of the parties, that is, on coinciding declarations. For adherents of this theory, what prevails in evaluating the transaction are the objective elements, those which appear to the outside world, not what the transactor had in his mind, but what the intended recipients of the declaration would in good faith believe.

The 1942 codification has in most cases incorporated the principle of reliance and assigned importance to the declaration, but in some instances, such as gifts and testamentary dispositions, importance is accorded to will and intention. The demands of disposing of legal actions and of the modern economy tend to put a premium on appearances, as opposed to subjective intentions, because observable effects are more manageable than the latter, which can only be ascertained by recourse to difficult and uncertain psychological interpretations.

7.1.4.The principle of the protection of reliance and apparent rights

A wish to undertake a given operation, such as an act of disposition, can be expressed in a declaration. A declaration, in the legal sense, binds the person who makes it. It often binds him even if the factual situation was in fact different from the one he thought obtained when he made it, or

if he has wrongly evaluated it, or if the party to whom the declaration is addressed could not possibly have interpreted it in the way that the declarer intended and has in fact interpreted it as a hypothetical reasonable person would have done. In these cases, instead of protecting the declarer’s wishes (an interior will, manifested or otherwise, but in any case different from what he would have intended had he known the real facts of the matter) they are postponed to the interests of the other party, who has acted on a basis of reliance by placing his faith in the declaration. The apparent prevails over the real situation.

This principle is expressed by the formula protection of reliance or protection of appearances. It prevails when a given factual or legal situation does not apply in the absence of knowledge of it on the part of another party or if it is at odds with a conflicting apparent situation.

The reasons for this principle are both historical and practical. They are historical, in that they emerged only once academic law began to downgrade the importance of the subjective will of the declarer; and practical because, especially in commercial relations, it is better to give effect to what appears to be the case rather than have to ascertain what the declarer actually intends, so as to save time and give certainty to legal relations. They are thus reasons of a general nature, but the rules also have their basis in the protection of particular interests, favouring those of the person who receives and relies on a declaration.

7.2. The elements of a legal transaction

7.2.1. Declaration, object, subject matter, form

A legal transaction, being an abstraction comprising any manifestation of will that produces legal effects, can be broken down into its separate parts. Each of these is subject to a particular set of rules, depending on whether it concerns contracts or unilateral acts. Some acts have a regime to themselves, especially wills (unilateral act) and gift (contract). The characteristics of each of these will be detailed in the appropriate place. Here a few general remarks will suffice.

The elements of a legal transaction are declaration, object, subject matter and form. All of these must be present. If one is missing the transaction is ineffective, technically ‘void’. The general rule is that form may be freely chosen, so a particular form is only required where specified by statute.

Will is manifested by means of a declaration. According to traditional theory, declarations can be divided into declarations of will, whereby specific obligations are undertaken such as in a unilateral promise and declarations of knowledge whereby the declarer attests to certain statements of fact, as, for example, in a confession. A declaration is