Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas
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Contents |
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6.10. The means of acquiring property: by conveyance |
132 |
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6.10.1. Transfer of property |
132 |
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6.10.2. Acquisition by originating title |
134 |
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6.11. The means of acquiring property: by purchase and barter |
135 |
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6.11.1. Purchase |
135 |
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6.11.2. Barter and similar phenomena |
139 |
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6.12. Actions in defence of property |
140 |
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6.12.1. Recovery actions |
140 |
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6.12.2. The injunctive action |
141 |
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6.12.3. The action to declare boundaries |
141 |
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6.12.4. The action to mark boundaries |
141 |
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6.13. Iura in re aliena |
142 |
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6.13.1. Concepts |
142 |
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6.13.2. The surface right |
142 |
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6.13.3. Usufruct, use, abode |
143 |
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6.13.4. Emphyteusis |
144 |
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6.13.5. Easements |
145 |
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6.14. Rights of guarantee and means of guaranteeing credit |
147 |
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6.14.1. Pledge and mortgage |
147 |
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6.14.2. Liens |
149 |
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6.15. Possession. Rules and effects |
150 |
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6.15.1. Possession in good faith |
151 |
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6.15.2. Acquisition from a non-owner |
151 |
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6.15.3. Prescription |
152 |
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6.15.4. Actions in defence of possession |
153 |
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Chapter VII: Transactions and Contracts |
157 |
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7.1. The means of freedom of transaction |
157 |
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7.1.1. Terminology |
157 |
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7.1.2. Private autonomy and freedom of transaction |
157 |
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7.1.3. From ‘will’ to ‘declaration’ |
159 |
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7.1.4. The principle of the protection of reliance and |
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apparent rights |
160 |
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7.2. The elements of a legal transaction |
161 |
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7.2.1. Declaration, object, subject matter, form |
161 |
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7.2.2. Essential and incidental elements |
162 |
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7.3. Defects of consent |
162 |
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7.3.1. Mistake |
162 |
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7.3.2. Duress |
165 |
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7.3.3. Fraud |
165 |
Contents |
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xi |
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7.4. Object and reasons. The contractual type |
166 |
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7.4.1. Concepts |
166 |
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7.4.2. Characteristics of the object |
167 |
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7.4.3. The contractual type |
168 |
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7.5. Sham transactions |
169 |
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7.5.1. Concepts and types |
169 |
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7.5.2. Effects of sham transactions |
170 |
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7.5.3. Proof. Particular types of sham transaction |
170 |
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7.6. Object and transactional framework |
171 |
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7.6.1. Unlawful transactions |
171 |
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7.6.2. Transactions to circumvent the law |
171 |
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7.6.3. Fiduciary transactions |
172 |
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7.6.4. Indirect transactions |
173 |
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7.6.5. Mixed and complex transactions. Linking |
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of transactions |
173 |
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7.7. The subject matter and content of the transaction |
174 |
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7.7.1. Concepts |
174 |
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7.7.2. Characteristics |
175 |
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7.8. Form |
176 |
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7.8.1. Concepts |
176 |
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7.8.2. Characteristics |
177 |
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7.9. Incidental elements |
177 |
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7.9.1. Conditions |
177 |
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7.9.2. Transaction period |
178 |
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7.9.3. Modus |
179 |
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7.10. Interpreting a transaction |
179 |
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7.10.1. Concepts |
179 |
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7.11. Supplementing the transaction |
180 |
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7.12. Valid and invalid transactions. Efficacy and inefficacy |
181 |
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7.13. Nullity and voidability |
182 |
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7.13.1. Concepts |
182 |
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7.13.2. Differences in the regimes |
183 |
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7.14. Agency |
184 |
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7.14.1. Concepts |
184 |
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7.14.2. Power of attorney |
185 |
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7.14.3. Defects of consent. Conflicts of interest |
186 |
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7.14.4. Indirect agency |
187 |
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7.14.5. Agency without authority. Ratification |
187 |
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Contents |
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7.14.6. Agency and mandate |
188 |
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7.14.7. Management of others’ business |
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(agency of necessity) |
190 |
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7.15. Specific types of transaction |
191 |
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7.15.1. Family transactions |
191 |
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7.15.2. Judicial transactions |
191 |
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7.15.3. Fundamental transactions and assignments |
191 |
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7.15.4. Constituent and confirmative transactions |
192 |
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7.15.5. Compromise and assignment for the |
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benefit of creditors |
192 |
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7.15.6. Unilateral transactions. Wills |
193 |
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7.15.7. Unilateral promises |
196 |
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7.15.8. Negotiable instruments |
197 |
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7.15.9. Bilateral and multilateral transactions. Contract |
199 |
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7.16. Current aspects of freedom to contract |
200 |
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7.16.1. Private autonomy and freedom to contract |
200 |
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7.16.2. Individually negotiated and standard form |
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contracts. General contract conditions |
201 |
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7.16.3. Consumer contracts |
203 |
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7.17. Classification of contracts |
203 |
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7.17.1. Criteria |
203 |
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7.17.2. Contingency and aleatory contracts |
204 |
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7.17.3. Gratuitous contracts. Gifts and acts of |
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liberality |
206 |
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7.17.4. Contracts that modify obligations for |
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obligor and obligee |
207 |
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7.17.5. Contracts for services |
210 |
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7.17.6. Bank contracts |
213 |
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7.17.7. Employment contracts |
214 |
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7.18. Contract formation |
214 |
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7.18.1. Offer and acceptance |
214 |
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7.18.2. Negotiations, steps to the formation |
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of contract |
217 |
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7.18.3. ‘Delivery’ in real contracts. Deposit, |
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sequestration, loan for use, loan |
219 |
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7.18.4. Preliminary contract |
222 |
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7.19. Effectiveness of the contract |
223 |
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7.19.1. Effects of the contract |
223 |
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7.19.2. Repudiation |
224 |
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7.19.3. Prohibition on alienation |
224 |
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7.19.4. Contracts for the benefit of third parties |
225 |
Contents |
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xiii |
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7.19.5. Contract for person to be named |
225 |
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7.19.6. Contract for the account of whom it may |
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concern |
226 |
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7.19.7. Assignment of contract. Sub-contracting. |
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Succession and contract |
226 |
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7.19.8. Added covenants |
228 |
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7.20. Execution of the contract and fulfilment of |
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obligations |
231 |
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7.20.1. Concepts |
231 |
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7.20.2. Performance |
231 |
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7.20.3. Payment |
233 |
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7.20.4. Undue payment. Recovery of undue payment |
235 |
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7.20.5. Unjust enrichment |
236 |
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7.21. Non-performance and contractual liability |
236 |
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7.21.1. Concepts |
236 |
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7.21.2. Impossibility, diligence, fault |
237 |
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7.22. Discharge of the contract |
239 |
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7.22.1. Non-performance |
239 |
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7.22.2. Supervening impossibility |
241 |
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7.22.3. Supervening unconscionability |
241 |
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7.22.4. Effects of discharge of contract |
242 |
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7.23. Contractual and non-contractual liability. Damages |
242 |
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7.23.1. Concepts |
242 |
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7.23.2. Penalty clauses, penalty payment, part payment |
244 |
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7.24. Rescission of a contract |
245 |
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7.24.1. Situations where rescission can occur |
245 |
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7.24.2. Characteristics and effects of rescission |
246 |
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7.25. Guaranteeing a debt and debtor’s property liability |
246 |
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7.25.1. Concepts |
246 |
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7.25.2. Contracts of guarantee: antichresis, |
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surety, credit guarantee |
247 |
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7.25.3. Means of protecting credit. Subrogation. |
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Actions to obtain revocation |
249 |
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Chapter VIII: Wrongful Acts and Civil Liability |
251 |
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8.1. Civil liability, wrongful acts, loss, damage and injury |
251 |
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8.1.1. Concepts |
251 |
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8.1.2. The traditional functions of civil liability |
252 |
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8.2. The subjective elements of a civil wrong |
253 |
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8.2.1. Fault and intent. Responsibility |
253 |
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xiv |
Contents |
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8.2.2. The risk principle. Objective liability |
255 |
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8.2.3. The objective elements of an unlawful act |
256 |
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8.3. ‘Wrongfulness’ of loss or damage. Standard and |
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non-standard torts |
259 |
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8.4. Interests protected in the sphere of civil liability |
260 |
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8.4.1. Personal rights |
260 |
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8.4.2. Biological harm and damage to health |
260 |
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8.4.3. Mental suffering |
261 |
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8.4.4. Harm arising from childbirth |
261 |
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8.4.5. Property |
262 |
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8.4.6. Nuisance and environmental pollution |
262 |
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8.4.7. Choses in action, rights of enjoyment, |
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expectations, legitimate interests, class interests |
264 |
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8.5. Specific situations in civil liability |
265 |
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8.5.1. Liability of employers and principals |
265 |
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8.5.2. Exercise of dangerous activities |
266 |
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8.5.3. Harm caused by animals |
266 |
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8.5.4. Circulation of vehicles |
267 |
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8.6. Producers’ liability for consumer goods |
268 |
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8.6.1. Legislative intervention: consumer protection |
269 |
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8.7. Liability of the public administration |
270 |
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8.7.1. Introduction |
270 |
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8.7.2. The current situation |
270 |
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8.8. Redress in non-contractual liability |
272 |
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8.8.1. Criteria for evaluating harm and assessing |
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damages |
272 |
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8.8.2. Specific form remedies |
272 |
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8.8.3. Mental suffering |
272 |
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Chapter IX: Protection of Rights |
275 |
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9.1. Protection of rights |
275 |
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9.1.1. Means of defending a legal position |
275 |
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9.1.2. Notification |
275 |
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9.1.3. Evidence |
276 |
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9.2. Actions to protect rights and interests |
277 |
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9.2.1. Actions and trials |
277 |
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9.2.2. Principles governing trials |
279 |
Index |
281 |
About the authors
Guido Alpa, FBA, is Professor of Civil Law at the University of Rome ‘La Sapienza’. He is presently the Chairman of the Italian Law Society (Consiglio Nazionale Forense) and has been a member of numerous government committees on legislative reform. He is a member of European Civil Code Steering Committee and serves on the boards of a number of European law reform groups and commissions. He has authored or edited over one hundred books, case-books, treatises and hand-books on practically all aspects of private law and many topics of legal theory. Among his latest publications is the Introduction to European Private Law (with Mads Andenas, Giuffrè 2006).
Vincenzo Zeno-Zencovich is Professor of Comparative Law in the University of Roma Tre. He has written extensively in the fields of European private law, torts, consumer law, media and ICT law. Among his latest publications is a book on freedom of expression (Il Mulino 2004) and commentaries on the Privacy Code (edited with F. Cardarelli and R. Sica, Giuffrè 2005) and digital television (edited with A. Frignani and E. Poddighe, Giuffrè 2006).
Foreword
There are many reasons why this book could attract a reader’s attention. Italy is, first, home to one of the oldest legal cultures of the world, and Bologna, the cradle of modern legal scholarship to which European private law owes so much, centuries later continues to be a symbol of learning and innovation. Italian academics have lived up to this long tradition by contributing much to the discourse on comparative methodology, today set to inherit on a global scale the role played by Roman law in Europe for so long. The names of Gino Gorla, Rodolfo Sacco and Mauro Cappelletti, among many others, are well-known to those working in the field. Finally, the country boasts one of the largest European economies, offering professional and commercial opportunities in many areas, and remains a prime destination for anyone wishing to escape the colder regions of the Continent for more mundane reasons. This book, we feel, will assist the student, scholar, and practitioner in pursuing or advising others on any of these very different aims.
A first point of entry to Italian private law, it is the fourth book to appear in this Series, the second one on a foreign legal system, and perhaps the only general introduction to Italian private and commercial law currently available in the English language. We are extremely pleased to have recruited for this project two leading Italian scholars who have not only excelled in the legal environment of their own country, but brought to the world of comparative law rich insights into the Italian system on a number of occasions. Professor Guido Alpa of the University of Rome ‘La Sapienza’ and his colleague Professor Vincenzo Zeno-Zencovich of the University of Roma Tre have each written extensively on all areas of Italian private law and, through their work as comparativists, know instinctively how to present their material to an international audience. The reader will thus find a concise account of and insightful background knowledge not only to the basic questions of Italian contract law, but also chapters on family law and succession, business and company law, property law, torts, and the basics of the Italian law of civil procedure.
As General Editors of this new and rapidly developing Series, we remain deeply grateful to our supporters in the New World who have
xviii Foreword
done so much to help us spread the Gospel of the Old. The University of Texas at Austin School of Law, since 2006 led by Dean Professor Larry Sager, continues to provide the institutional platform for the project. The School has assisted us greatly in attracting the attention of the American legal audience. The M. D. Anderson Foundation of Houston and Mr Gibson Gayle, formerly Managing Partner of Fulbright and Jaworski, are thanked for providing the financial support for the many small and large steps which eventually lead to the publication of our books. The authors wish to express their gratitude towards Dr. David T. Wild who has edited the English edition of this handbook. Finally, thanks must go to the new team of Routledge-Cavendish, which has taken over the production of the Series with dedication and professionalism.
Jörg Fedtke
London, 8 November 2006
Chapter I:
Introductory Concepts
1.1. Private law today
1.1.1. Private law, civil law and commercial law
Private law traditionally includes relations between private persons. It is divided into two main branches: civil law (from the Latin civis, citizen) and commercial law.
Civil law is concerned with all legal relations that can subsist between private persons, with the exception of economic operations pertaining to commerce, industry and professional activities, all of which are covered by commercial law.
Between these two branches may be inserted a third: employment law, covering the individual and collective relations in the world of work.
Before the current civil code, dating from 1942, was promulgated, the distinction between the two branches was enshrined in legal form, as there were two codes, the civil code, which regulated relations between civilians, and the code of commerce, regulating relations among traders, and between traders and private persons. Many legal systems still retain this division. In France, for example, there is the Civil Code (from 1804) and the Commercial Code (1808). In the United States the laws on civil relations are not codified, whereas commercial law partly has been, in the
Uniform Commercial Code of 1962.
In the Italian system this double codification was abolished in 1942, with the promulgation of a civil code made up of six parts, known as ‘books’ dealing with the individual and the family (Book I), the law of succession (Book II), property law (Book III), the law of obligations (Book IV), employment law (Book V) and the protection of rights (Book V). Business contracts are dealt with in Book IV and businesses and companies in Book V.
1.1.2. History and function of the civil code
To date, there have been two codes regulating the Italian legal system. The first came into force in 1865 following the political and administrative unification of the various Italian states. The second,