Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

2 Introductory Concepts

currently in force, was promulgated during the Second World War. The basic intentions behind the earlier code are clear. From a political viewpoint, it gave uniformity to the regulation of private relations which had hitherto differed between the various states out of which Italy was formed. From a commercial and economic viewpoint, such uniformity made the conduct of business easier and quicker. From a judicial viewpoint, the earlier code was based largely on the Napoleonic code.

The 1942 code, on the other hand, reflects the need to update a regime which in many respects had become too outdated to satisfy the requirements of an economy that had changed substantially and was much more dynamic than that of the nineteenth century. There was also a desire on the part of those in power to signal in a durable form the development the Italian state had undergone, by means of the detailed regulation of private activities.

However, unlike other codes, for example, the criminal code of 1930, the civil code was not profoundly influenced by the Fascist government in power at the time. Its drafting – completed in only a few years despite wartime difficulties – was entrusted to jurists not identified with Fascist regime and the ideology concealed behind such disciplines as property, succession and family law was consistent with the attitudes of most citizens of the time and reflected the needs of a laissez-faire economy.

1.1.3. The civil code and legislative reform

The civil code has undergone significant change since 1942. Modifications to its text, together with the addition of numerous laws profoundly affecting individual aspects of private law, show how the civil law has developed and become progressively integrated with public law, and reveal the growing distinction between general law and that concerning economic development: altogether a veritable phase of innovation in the civil law.

Considering these innovations not in chronological order, but following the order of the Books of the code, it will suffice to outline some of the important changes to give a picture of how civil law is developing and of how the civil code is being transformed.

Of particular significance in the area of personal rights is law no. 675 of 31 December 1996 on personal data protection, which gives legal recognition to a right to privacy. Family law underwent thorough reform with the introduction of law no. 151 of 19 May 1975, which also made important innovations in the law of legitimate succession. Divorce was introduced (law no. 898 of 1 December 1970, as amended by laws nos. 436 of 1 August 1978 and 74 of 6 March 1987) as was a different regime for adoption of children (laws nos. 431 of 5 June 1967, 184 of 4 May 1983, and 476 of 31 December 1998 on international adoption).

The marriage rules arising from the Concordat of 1929 with the Holy See were revised by the Villa Madama agreement of 18 February 1984 and the revisions implemented by law no. 121 of 25 May 1985. Previously, law no. 194 of 22 May 1978 legislated for the medical termination of pregnancy (abortion).

The regime of property law has been extensively revised, not only through national legislation, but also through EU and regional intervention in the areas of agricultural land, hunting, protection of flora and fauna, cultural and environmental heritage (legislative decree no. 42 of 2004) as well as through important new legislation concerning buildings (laws nos. 10 of 28 January 1977 and 47 of 28 February 1985), urban leases (fair rent law no. 392 of 27 July 1978 and law no. 431 of 9 December 1998) and timesharing property (legislative decree no. 427 of 9 November 1998).

In general, fewer changes have taken place in the areas of obligations and contract, with the exception of hire, insurance and rental of rural property. However, laws have been increasingly required to give effect to EU rules, particularly on consumer protection (among other examples, legislative decree no. 50 of 15 January 1992 on sales away from commercial premises, presidential decree no. 185 of 22 May 1999 on sales at a distance and the rules in Arts 1469 bis ff. of the civil code on unfair terms in consumer contracts), and also others designed to adapt to the demands of new technologies (presidential decree no. 513 of 10 November 1997 on digital documents).

Employment law has been transformed from two directions, both by the introduction of a parallel set of rules in the form of sectoral contracts and by a law on fundamental principles of work, the Statute of Labour (law no. 300 of 20 May 1970), together with a new set of trial procedures (law no. 533 of 11 August 1973). Finally, new measures to ensure equal treatment of men and women have been taken to remove the obstacles to equal opportunity (laws nos. 903 of 1977 and 127 of 1991).

In commercial law, a register of businesses has been created (law no. 580 of 29 December 1993 and presidential decree no. 581 of 7 December 1994) and the law on sub-contracting (law no. 281 of 18 June 1998) and factoring (law no. 52 of 21 February 1991) has been regulated. A consolidated law text (legislative decree no. 58 of 24 February 1998), bringing together the various rules on financial brokerage, has made provision also for quoted companies and for providers of banking and credit services (legislative decree no. 385 of 1 September 1993).

Reform of shareholder-owned companies has also taken place (first with law no. 216 of 7 June 1974, containing provisions on the stock market and taxation of shareholdings, and more recently with legislative decree no. 6 of 2003, all modifying the civil code). The nucleus of

4 Introductory Concepts

a regime covering the stock market has emerged (laws nos. 77 of 23 March 1983 and 281 of 4 June 1985). Other important reforms relate to specific sectors, including compulsory insurance of motor vehicles and boats (laws nos. 900 of 24 December 1969 and 29 of 26 February 1977), regulation of commerce (law no. 426 of 11 June 1971 and legislative decree no. 114 of 31 March 1998) and the protection of competition (law no. 287 of 10 October 1990).

In some cases these modifications have been applied directly to the text of the civil code (for example, adoption, family law). In others there has been a preference for specific statutes having effect alongside the code. This process of decodification represents a new phase in the civil law, in which the dominant tendency is away from gathering together all regulation of private relations in a single text and towards developing specific laws in appreciable numbers in derogation from the general rules.

Does this imply that the function of the civil code, and of codes in general, can be said to have nearly run its course in advanced capitalist society?

In the view of some, the process of decodification demonstrates the inadequacy of current codes to regulate all aspects of private relations, and hence the need for special laws to regulate in minute detail those relations that cannot be brought within the scope of the codes. There are others who, fearing for the certainty of law, contrast these tendencies and argue for a literal and rigid interpretation of the law. It should not, however, be assumed that the function of codes is coming to an end in today’s society: as evidence of this, note that systems such as the common law that have historically not adopted codification have recently adopted sectoral codes.

1.1.4. Private and public law

Little remains of the concept and structure of private law as it was understood in the nineteenth century. Wholesale economic and social transformation since the First World War have irreversibly changed both the nature of private relations and the private law concepts underpinning them.

As far as relations are concerned, a new form of state, the welfare state, governed by public law, has come into being. In this new state, the concerns of public authority are not confined to internal security and defence of frontiers, but expand in a far more intrusive way to embrace economic processes, taking measures to benefit the economy, with direct administration of social services (transport, public assistance, medical services and so on) and intervening in private commercial relations (regulating prices, credit, insurance, etc).

As far as private law concepts are concerned, one must bear in mind the ever-widening field of activity covered by laws, thus reducing the scope for negotiated relations reflecting the common will of private parties, and ensuring that negotiations themselves are to a large extent covered by regulation and administrative provisions.

On the other hand, public powers are decreasingly subject to a special regime (public law) and more and more subject to a ‘combined’ law applicable both to public and private subjects. This new area of law consists not only of numerous constitutional rules, but also to a large extent to laws that at one time made up private law as distinct from public law. Examples include the many provisions of the civil code governing contracts that today are often applied to relations between local authorities and individuals in the matter of land-use planning.

For this reason, as already noted, the traditional distinction between private and public law is tending to become less useful and may even be a hindrance in areas such as property law where private and public law aspects are closely intertwined.

It should also be noted that private law is used also today to protect interests that are neither individual nor, according to some, pertain strictly to public power and so cannot be considered as public interests. This arises in the case of organised categories, for example, collective trade-union interests, and in groups, communities and associations with interests as various as health, the environment, and the interests of consumers and investors.

Provisions of private law can also be applied to forms of social control, covering private activities (particularly business activity) in such a way that the control comes not directly from public authorities but is exercised by other private persons organised into groups, associations and communities. Examples are the control over individuals’ use of cultural heritage, and the influence of associations such as consumer groups in the manufacture of products.

1.2. Constitution and private law

1.2.1. Constitutional rules that concern private relations

Precisely because the relationship between the individual and the State has changed with the historical development of institutions, it is possible today to speak of the constitutional importance of private relations and, by the same token, of the effect of constitutional rules on the actions of individuals.

The separation between the private and public spheres of relationships is subject to many exceptions. Whereas under the previous constitutional regime the rules governed relations between individuals

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only to the extent required to protect their autonomy vis-à-vis State intervention – Art 29 of the mid-nineteenth-century Albertine Statute declared private property to be inviolable – today the 1948 Constitution (which entered into force when democratic institutions were restored in Italy after the Second World War) considers numerous other relationships, such as employment, savings, access to housing, the family and so on, which implies a variety of State intervention in sectors traditionally reserved to private relations.

We shall return later, when discussing specific topics, to the particular importance of individual constitutional provisions, but here we shall undertake a brief survey of the principles that have the greatest importance for our field of study.

The Constitution begins with rules that protect the person and the so-called inviolable rights. These rules afford protection to the individual, both singly and as a participant in groups (Art 2) such as family, school, workplace and various kinds of association. In this context particular importance is given to the principle of equality and individual freedoms.

In Part I, covering the rights and duties of the citizen, are enshrined important personal rights such as the inviolability of the person and the home, the privacy of correspondence and the right of association (Arts 13ff of the Constitution). Of particular importance are the rules dedicated to the family, an institution protected as a ‘natural association’ (Art 29), a community in which the moral and legal equality of spouses is assured (Art 29(2)) and those in Art 30 setting out the duties of parents towards their children, be they born in or out of wedlock. Among other personal rights guaranteed by the Constitution, the right to health (Art 32) extends beyond the mere right not to undergo medical treatment without consent, conferring a positive right which all can maintain against whoever can violate or endanger them, through hazardous industrial activities, environmental pollution (see Art 9) and dangerous working conditions.

Work (and labour relations) is protected in a special manner. This is made evident as early as Art 1, which states that Italy is a democratic republic based on work, and in Art 3(2), which identifies work as a central factor in individual development. There are also provisions for protection of workers (Arts 35ff).

One of the most profoundly innovative aspects of the Constitution, however, is the way that it approaches economic relations from a social perspective. Indeed, business enterprise (Art 41) and property (Art 42) are no longer viewed as the privilege of a few, but as components of free economic activity which cannot be exercised either in disregard of its social utility or in violation of the safety, dignity and personal freedom of individual workers and, more generally, of citizens.

The Constitution guarantees individual private property, and prohibits its abolition, but allows the legislature the possibility to make laws to limit the scope of private property in order to promote social goals through the protection of general and collective interests.

Recent examples can be found in the law of landlord and tenant, which indeed realises the social function of property by limiting the landlord’s powers in favour of the tenant, and in building law, where a blanket proprietary right to build has been limited in the interest of land protection and orderly urban development.

Business law is invested with the same logic. While the right to individual-economic initiative is recognised, the right is equally reserved to limit it for social ends, extending to economic programmes designed to establish what should be produced and in what quantities or where business enterprises should be situated. Furthermore, while some sectors can remain entirely in private hands, or in private hands under State direction, the State itself can reserve to itself the direct exercise of some economic activities, either to ensure the provision of essential public services (Art 43) or to introduce laws to nationalise or collectivise businesses or sectors in private hands. Such a provision, however, has been substantially modified in its interpretation since 1957 when Italy became one of the founding Member States of the European Community.

The inefficiencies that have resulted from such arrangements have in more recent times led to so-called privatisations (law no. 474 of 30 July 1994) and State intervention in the economy is now limited largely to the protection of competition and of consumers, through the activities of the independent regulatory authorities.

1.2.2.The direct application of constitutional rules on private relations

Thus, private relations cannot be seen as an area in which the State should take no interest, but rather as one with definite constitutional implications.

It is generally said that constitutional rules are applicable to private relations, since these are commands addressed to the legislature, in the sense that in passing laws concerning businesses, property and so on, legislators must keep to constitutional principles.

It has happened, for example, that in some cases the legislature has not respected the guarantee of protection of the individual property owner, for example, in the laws on rural property. The Constitutional Court declared in the end that laws which unduly favoured tenants at the expense of the landowner were illegitimate (Constitutional Court decision no. 153 of 1977). In other cases, however, the legislature, either because the law came into effect before the Constitution or violated its

8 Introductory Concepts

requirements, has unduly favoured suppliers at the expense of users, for example, in laws on prices and tariffs for public services. In these cases also the Constitutional Court has intervened to restore the balance.

On the other hand, according to the doctrine of direct applicability of constitutional rules, they have more than the general importance outlined above in that they can be directly applied by the judge who at the request of the parties may establish whether the individual has conducted his activities in a manner contrary to the constitutional rules and may also make any necessary orders and apply appropriate sanctions. The doctrine of direct applicability is generally rejected: however, there are apparently situations where the judge can refer to the Constitution in order to repress illicit acts or to support the justification of his decision. The emission of smoke and liquid sewage, by violating the constitutional protection of health (Art 32), should ipso facto be considered illegitimate. Again, the elements of fair trading relating to unfair competition (Art 2598 of the civil code) are based on the provisions of Art 41 of the Constitution.

The problem is very complex and legal scholarship has not yet been able to resolve it clearly. The traditional view did not admit the possibility of constitutional rules being applied directly to private relations by a trial judge, but modern scholarship has opened the door to such a possibility, especially in cases of protection of the person or definition of the import of general principles (of which more in subsequent chapters).

To summarise, the relationship between private law and the Constitution can be considered from two different viewpoints:

(a)legislative intervention in private relations with a view to attaining social ends and serving general interests through the institutions of private law (such as property, business enterprise, contract and liability);

(b)the protection of individuals from State intervention, with the aim of protecting the person whether qua individual or as a representative or member of groups and communities (such as families, associations, parties, trade unions, professional bodies and societies) and by means of the necessary measures to assure the equality of citizens.

In this sense, the fundamental principles – protection of the person, of substantive equality, the removal of obstacles which, for economic or social reasons, prevent people (particularly the poorest) from participating in the country’s decisions – can be found not just in the formal constitution, but also in the living constitution, that is to say, in the nexus of principles inhering in the pact formed between political and social forces at the founding of the Republic and progressively modified to adapt to changes in society.

1.2.3. The principle of equality in private law

The principle of equality in the formal sense (Art 3(1) of the Constitution) can be applied in many ways to private law. Relevant legislative measures require, for example, the equal treatment of consumers in cases where the goods or services are supplied by businesses operating under conditions of legal monopoly: Art 2597 of the civil code states that ‘whoever operates a business enterprise in conditions of legal monopoly is obliged to contract with whomever requests the services provided by the business, maintaining parity of treatment.’ Other measures have recently attempted to eliminate the discrimination still suffered by women (law no. 903 of 1977, on equality in the workplace) and by wives (law no. 151 of 1975, reforming family rights).

There are, in addition to Arts 3(1) and 29, a number of other constitutional rules which can be invoked to give effect to the principle of substantive equality and by which the State undertakes to remove the economic and social obstacles which impede the full development of the individual and the effective participation of all workers in the political, economic and social development of the country.

1.3. The new sources of private law

Public law is concerned with the sources of law; from the point of view of civil law it is both necessary and sufficient to observe that the laws regulating private relations can be of a n a t i o n a l , r e g i o n a l or supranational origin.

The laws regulating private relations are for the most part of national origin, having been passed by the national parliament. With the establishment of regions (Art 117 of the Constitution) and the commencement of their effective functioning, the question arises as to whether regions have the necessary competence to pass laws regarding private relations. At the same time, with the proliferation of supranational organisations of which Italy is a member, the supranational rules governing private relations are multiplying.

1.3.1. The problem of regional private law

Does regional private law exist?

The question has been widely debated. Article 117 of the Constitution, which sets out the legislative competence of regions, explicitly affirms that the State has pre-emption over ‘private (and criminal) law’.

The Constitutional Court has declared that the regions have no specific standing to regulate private relations, but on the other hand private law is not always a subject in itself, being made up of various

especially in cases where general principles need to be applied. This term, which originated in German jurisprudence, refers to expressions with a general, non-specific scope, such that their import can be refined over time by judges in a manner reflecting the changing habits and sentiments of the citizens: in short, a collective social consciousness.

Legislation often incorporates general principles into private law. One only has to think of circumstances in which these expressions are used: ‘just cause’ (in dismissal, for example); ‘creditor’s interest’ (Arts 1173 and 1414 of the civil code); ‘reasonable period’ (Art 1379 civil code); ‘serious cause’ (Art 24 civil code) and so on.

The judge is thus in a position to appraise, from time to time, the circumstances of the case and to adapt the letter of the law in the historically most appropriate manner.

Some general principles are of particular importance, either because they affect the performance of a contract (for example, good faith) or because they concern the validity of legal documents (for example, public order, public morals). Each of these will be subject to a specific analysis below.

Public order is a rather ambiguous expression. It does not, in a private law context, mean only external order, collective order, in other words, police-enforced order: rather, it means the totality of peremptory principles on which the legal order is based. The rules of public order are established to protect public interests, and affect both family relations (for example, rules governing marriage) and relations of an economic nature.

The expression ‘public order’ is one of the most frequently recurring in case law, and is often decisive in a ratio decidendi of the issue in that any declaration that a relationship of any kind is contrary to public order is sufficient to invalidate it.

‘Public morals’ refer not only to the many aspects of sexual morality, as is often assumed (and as everyday language would imply), but rather the entire range of social and moral principles on which a society is based, and which are respected by the majority of its members.

For example, it is held to be against public morals for A to promise to pay B to influence his conduct of a public function (this is the practice of bribery, elegantly referred to as ‘trafficking of influence’ in some decisions).

Among the preliminary provisions of Book IV of the civil code, the legislator also sets out, over and above sources of obligation and the proprietary character of performance, duties of fairness. These consist of duties, rather than obligations in a strict technical sense, because they concern the behaviour that is expected from a person in his manner of discharging an obligation. The expression propriety indicates precisely a fairness and probity of conduct, and corresponds to good faith in an objective sense, to which reference is made in the context of negotiations