Italian Private Law

Guido Alpa, Vincenzo Zeno-Zencovich

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135393205
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Italian Private Law provides an excellent overview and analysis of Italian private law and its transition from the early twentieth century legal tradition to a system based on constitutional values, geared towards European integration.

Exploring the eclectic yet systematically solid foundations of Italian private law, which has adapted itself to the ever growing pressure of EU legislation, Alpa and Zenovich look at the legislative system as well as the profound influence of case-law and legal scholarship.

It examines:

• 
  
  

• family law
• succession
• legal persons
• businesses and companies
• property law
• contract law
• tort law.

This volume is a key resource for legal scholars, practitioners and students who want to gain a deeper knowledge of Italian private law in their research, professional or academic activity.

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, 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 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...