Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

282 Index

business and companies (Continued) company contract, aims 104; company fortunes 105; contracts of association 98–99; copyright and industrial inventions 97–98; entrepreneur 93–95, see also separate entry; limited liability company (S.r.l) 103; limited partnership 101; limited partnership with shares (S.a.p.a.) 103; non-business association 101; partnership contract 99; property of the enterprise 95–96; secret and ostensible companies 104; share company 103; stock-companies 103; trademarks and competition 96–97; undertakings 100–103, see also separate entry

cancellation clause 240

capacity: to exercise rights 33–37, basics 33–34, citizenship 36–37, disability 36, disqualification 35–36, emancipation 34, natural incapacity 34–35

causation 257; chain of causation 257; legal causation 257–258; sufficient causation 258

choses in action 18 circulation 111–113 citizenship 36–37

civil code: 1942 code 2; history and function of 1–2; legislative reform and 2–4; Napoleonic code 2

civil law 1

civil liability: functions of 252–253, preventive function 252; interests protected in 260–265, biological harm and damage to health 260–261, class interests 265, harm arising from childbirth 261–262, legitimate interests 264, mental suffering 261, nuisance and environmental pollution 262–263, personal rights 260, property 262; specific situations in 265–268; wrongful acts and 251–273,

see also under wrongful acts

code of commerce 1 collateral descent 54 collectible debt 26 collective property 109 commercial law 1, 3 common ancestor 54 compromise 192 conditional contract 204

conditions 177–178; condition precedent 177; condition subsequent 178; contingent condition 178; potestative condition 178

condominium of buildings 131–132; co-ownership versus 131

conflicts of interest 186–187 consensual contract 204

consent 215; defects of 162–166, duress 163, fraud 163, mistake 162–164, see also separate entry consortial companies 104; external

consortium 104; internal consortia 104

constitution: formal constitution 8; living constitution 8; private law and 5–9, business enterprise 6, constitutional rules on private relations 5–8, individual private property 7, work (and labour relations) 6

contingency contracts 204–206; economic contingency 204; legal contingency 204

contracts 199–200; for the account of whom it may concern 226; adhesion contract 201; assignment of 226–228, sub-contracting, succession

and contract 226–228; bank contracts 213; for the benefit of third parties 225; changes in 3; classification 203–204, aleatory or commutative 203, for assignment 204, bilateral 203, conditional 204, consensual 204, contingency and aleatory contracts 204–206, criteria 203–204, for deferred execution 204, exchange contracts 203,

284 Index

detention: versus possession 27–28 diligence 237–239

disability 36

disclaimer of paternity 64–65 disqualification 35–36; judicial

disqualification 35; statutory disqualification 35

domain property 108 domicile 32

duress 163, 165

easements 145–147; acquisition, by prescription 146, rules 146; categories 146, affirmative 146, necessity 146, negative 146, voluntary 146; extinguishing ways 146; industrial easement 145; personal easements 145

efficacy 181–182 emancipation 34 emphyteusis 144–145 employment contracts 214 employment law 1, 3

entrepreneur 93–95; agricultural entrepreneur 94; defining traits of 93; entrepreneur’s statute 95

evidence 276–277 exchange contracts 203 exclusion agreement 228 excusability 163 exoneration clauses 230 expropriation 122

fair rents 126

family: in the constitution and recent laws 49–54; de facto family 50–52; divorce 61; economic function of 48–49; family ‘crises’, judicial intervention in 61–62; family law 2, concepts and measures in 54–56, divorce 2, material support 55–56, reform of 52–53, relatedness and affinity 54–55; illegitimate issue 69–72,

see also separate entry; individual, family and social groupings 47–48; legal and social position of women 54; legitimate issue

63–69, see also separate entry; natural family 50–51; as a natural society and the equality of spouses 49–50; ‘patriarchal’ family and the ‘nuclear’ family 48–49; position of children and the educational role of parents 50; property relations between spouses 62–63, see also separate entry; and succession 47–78; succession, property, family 72–73, see also succession; weddings 56–59, see also separate entry

fault 237–239, 253–255 feudal property 114–118

fiduciary transactions 172–173; ‘with a creditor’ 172; ‘with a friend’ 172

finder’s right 134

fixed term contract 204

form 161–162, 176–177, 215; characteristics 177; concepts 176; contractual form 177; documentary form 176; freedom of forms 176; legal form 176–177; oral form 176; public document form 176; solemn form 176; written

form 176 formal offer 25 forwarding 189 franchising 189

fraud 163, 165–166; fundamental form 166; incidental form 166

fundamentality 163

gaming 205

general equity 10–12 gifts: and acts of liberality

206–207

goods: property and 107–155, see also under property

gratuitous contracts: gifts and acts of liberality 206–207

group 79

guarantee, contracts of 247–248; antichresis 247–248; credit guarantee 247–248; surety 247–248

286 Index

legitimate issue (Continued) authority 66; paternity, and maternity, presumption of 64, disclaimer of 64; possession of civil status 65; principles of 63–66

lettings 126–128

liability 20, 218; civil liability, see separate entry; contractual liability 251; criminal liability 251; non-contractual liability, redress in 272–273; objective liability 255–256; professional liability 239; of the public administration 270–272; vicarious liability 238

liens 149–150 life annuities 205

limitation periods 15

limited liability company (S.r.l) 103 limited partnership with shares

(S.a.p.a.) 103 line of direct 54 liquid debt 26

loan 219–222; loan for use 219–222

loss 251–253, 259–260

mandate: agency and 188–190; duties of 188

marriages 56–59, see also under weddings; canonical marriages 58; defects in 58; invalidity of 58; marriage relations 59–62, personal duties 59–60, separation 60–61; promise of 59; voidable marriage 58

maternity and paternity, judicial declaration of 70

means 215 mediation 189 merchandising 190

mistake 162–164; bilateral mistake 163; common mistake 163; excusability 163; fatal mistake 163; fundamentality 163; impeditive mistake 163; patency 163; unilateral mistake 163

modus 179 moral right 97

mortgage 147–149; judicial mortgage 149; statutory mortgage 149; voluntary mortgage 149

mutual dissent 217

Napoleonic code 2 natural incapacity 34–35

natural persons 29–46; domicile and residence of 32–33; individuals, personality and the protection of 29; legal capacity 29–33, see also separate entry; personality rights 37–46, see also separate entry

natural society 49 negative interest 218

negotiable instruments 197–199; bank cheque 198; banker’s draft 198; bearer instruments 198; bill of exchange 198; credit cards 199; instruments to order 198; registered instruments 198

negotiations 217–219 ‘nominalist’ principle 23–24 non-performance: contractual

liability and 236–239, concepts 236–237, impossibility, diligence, fault 237–239

non-solemn contract 204

notice 24; formal notice 24, issue of 25; preconditions 24

notification 276 novation 26, 209 nuisance 262–263

nullity: differences in the regimes 183–184; voidability and 182–184, concepts 182

object 161–162

object: characteristics 167–168; and reasons, contractual type 166–169, concepts 166–167; transactional framework

and 171–174, unlawful transactions 171

objectual delegation 209 obligation 19–27, 157; alternative

obligations 22; basics 19–20; changes in 3; characteristics 19, participation 19, personal 19,

288 Index

private law (Contunied) national origin 9, regional

private law 9–10, supernational sources and EU law 10, supranational origin 9; obligations 19–27, see also separate entry; political parties and trade unions in 88–89; public law versus 5

private property 108; limits placed on 119–120, external limit 119, internal limit 119; public interest and 119–125, acquisition by occupation 122–124, compulsory purchase 122, environmental and cultural heritage 124–125

private relations: judges role in 10–12, general principles 10–12

proof 170–171

property 262; acquiring means 132–135, originating title 134–135, by purchase and barter 135–140; actions in defence of 140–141, action to declare boundaries 141, action to mark boundaries 141, injunctive actions 140, recovery actions 140; agricultural land, rural property and uncultivated land 128; building property 125–128, see also separate entry; collective property 109; conservation and circulation 124; in the constitution 118, work and savings 118; domain property 108; and goods 107–155, legal sense 107–111; intangible property 111; Iura in re aliena 142–147, see also separate entry; legal circulation of 111–113, acquisition, rules on 111–112, immoveable goods and functions of property registers 112–113; models of 114–118, absolute 114–118, feudal 114–118, relative property ownership 114–118; moveable and immoveable property 110, distinguishing between 111; as natural right 116; ‘physiocratic’

model of 117; possession 150–155, see also separate entry; private interest and 129–131, concepts 129–130, timesharing 130–131; private property and the public interest 119–125, see also under private property; productive property 111; property law, regime of 3; property liability 20; property registers 112–113; property relations between spouses 62–63, community property by agreement 63, joint estates 62–63; property rights

12, as enumerated 18–19, characteristics 18, choses in action and 18, exercise of a right 27, ownership of a right 27, unconditional 18; rights of guarantee and means of guaranteeing credit 147–150, liens 149–150, pledge and mortgage 147–149; social function of 117, 120–122; terminology explained 113–114; transfer of 132–134

protection of rights 275–280; actions to 277–280, actions and trials 277–278, principles governing trials 279–280; evidence 276–277, public and private 276; legal position, defending 275; notification 275–276

provision relation 208 public morals 11 public order 11

public property 108–109 purchase: and barter 135–140

ratification 187–188 redemption 137

redress: in non-contractual liability 272–273, harm and assessing damages, evaluating 272, mental suffering 272–273, specific form remedies 272

regional private law 9–10 relatedness 54–55

relative property ownership 114–118

290 Index

transactions (Continued) bilateral and multilateral transactions 199–200; to circumvent the law 171–172; compromise 192; confirmative transactions 192; consent, defects of 162–166, see also under consent; constituent

transactions 192; contracts and 157–250; debt guaranteeing and debtor’s property liability 246–250, see also under debt; family transactions 191; fiduciary transactions 172–173, see also separate entry; form 176–177, see also separate entry; fundamental transactions 191–192; incidental elements 177–179, conditions 177–178, see also separate entry; indirect transactions 173; interpreting 179–180, faith interpretation 180, objective interpretation 180, subjective interpretation 180, supplementary interpretation 180; judicial transactions 191; legal transaction, see separate entry; linked transactions 174; means of freedom of 157–161, from ‘will’ to ‘declaration’ 159–160,

private autonomy and freedom of transaction 157–159, reliance and apparent rights, protection, principle 160–161, terminology 157; mixed and complex transactions 173–174; modus 179; negotiable instruments 197–199, see also separate entry; nullity and voidability 182–184, see also under nullity; object 166–169, see also under object; sham transactions 169–171,

see separate entry; subject matter and content of 174–175, ascertainable subject matter 175, characteristics 175, concepts 174–175, legal subject matter 175, possible subject matter 175; supplementing 180–181;

transaction period 178–179; unilateral promises 191; valid and invalid transactions 181–182; voidable transaction 182; wills 191

treasure 134

typical contract 204

uncultivated land 128 understanding 157 undertakings 157; types and

classification 100–103, based on capital 100, based on

persons 100 unfitness 76–78

unilateral promises 196–197 unjust enrichment 235 unlawful transactions 171 use 143–144

usufruct 143–144 usury 23

Villa Madama agreement 3 void 194

voidable transaction 182 voluntarist theory 160 voluntary and non-profit

organizations 90–92; socially beneficial non-profit organizations 91–92; voluntary organizations 90–91, definition 91

voting syndicate 103

weddings 56–59, see also marriages; civil weddings 56–58; preconditions 57, absence of impediment 57, absence of offence 57, age 57, natural capacity 57, unmarried

status 57

wills 159–160, 191, 193–195, see also void; avoiding 194; form of a will 193; interpretation 195; mutual wills 193

women: legal and social position of 54

work 6, 118; workers’ statute 45 wrongful acts: civil liability and

251–273; civil wrong, subjective

elements 253–258; consumer goods, producers’ liability for 268–270, legislative intervention 269–270; liability of the public administration 270–272;

Index 291

objective elements of 256–258; redress in non-contractual liability 272–273, see also under redress; standard and non-standard torts 259–260