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ITALIAN PRIVATE LAW
The volume offers both a general overview and selected details of Italian private law and its transition from early twentieth-century legal tradition to a modern legal system based on constitutional values and geared towards European integration.
Among the areas presented are family law, succession, legal persons, businesses and companies, property, contract, and tort. The volume takes into account not only the legislative system, starting from the 1942 Civil Code and highlighting the many and significant changes that have been made in the past six decades, but also the profound influence of case law and legal scholarship. The authors emphasise the eclectic but systematically solid foundations of Italian private law, which has been able to blend successfully the best of the diverse continental legal traditions and adapt itself to the ever growing pressure of EU legislation.
The volume is addressed to legal scholars, practitioners and students who wish to gain first-hand knowledge of Italian private law in their research, professional or academic activity.
Guido Alpa, FBA, is Professor of Civil Law at the University of Rome ‘La Sapienza’. Vincenzo Zeno-Zencovich is Professor of Comparative Law in the University of Roma Tre.
The University of Texas at Austin
Studies in Foreign and
Transnational Law
General Editors: Sir Basil Markesinis and Dr Jörg Fedtke
The UT Studies in Foreign and Transnational Law Series aims to publish books covering various aspects of foreign, private, criminal and public law, as well as transnational law. This broad ambition of the Series underlines the editors’ belief that in a shrinking world there is a growing need to expand our knowledge of other legal orders – national or supranational – and to publish books discussing comparative methodology and not merely describing foreign systems.
Titles in the series:
The French Civil Code
J.-L. Halpérin, transl. T. Weir
Judicial Recourse to Foreign Law: A New Source of Inspiration?
Sir B. Markesinis and J. Fedtke
International Negotiation in the Twenty-First Century
A. Plantey, transl. F. Meadows
Forthcoming titles:
Human Rights in the Private Sphere
D. Oliver and J. Fedtke (eds) (2007)
The Protection of Human Rights in German and English Law
J. Fedtke and M. O’Cinneide (2008)
ITALIAN PRIVATE LAW
Guido Alpa and Vincenzo Zeno-Zencovich
First published 2007 by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada by Routledge-Cavendish
270 Madison Ave, New York, NY 10016
Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business
© 2007 Guido Alpa and Vincenzo Zeno-Zencovich
This edition published in the Taylor & Francis e-Library, 2007.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Alpa, Guido.
Italian private law / Guido Alpa and Vincenzo Zeno-Zencovich.
p.cm.
1.Civil law—Italy. I. Zeno-Zencovich Vincenzo. II. Title.
KKH500.A4876 2007 |
|
346.45—dc22 |
2006037175 |
ISBN 0–203–94505–0 Master e-book ISBN
ISBN10: 1–84472–051–9 (hbk)
ISBN13: 978–1–84472–051–4 (hbk)
Contents
About the authors |
xv |
Foreword |
xvii |
Chapter I: Introductory Concepts |
1 |
1.1. Private law today |
1 |
1.1.1. Private law, civil law and commercial law |
1 |
1.1.2. History and function of the civil code |
1 |
1.1.3. The civil code and legislative reform |
2 |
1.1.4. Private and public law |
4 |
1.2. Constitution and private law |
5 |
1.2.1. Constitutional rules that concern private relations |
5 |
1.2.2. The direct application of constitutional rules on |
|
private relations |
7 |
1.2.3. The principle of equality in private law |
9 |
1.3. The new sources of private law |
9 |
1.3.1. The problem of regional private law |
9 |
1.3.2. Supernational sources and EU law |
10 |
1.4. The role of judges in private relations and general |
|
principles. General equity |
10 |
1.4.1. The general principles |
10 |
1.4.2. General equity |
12 |
1.5. Legal relations |
12 |
1.5.1. Rights and interests |
12 |
1.5.2. The parties in legal relations |
14 |
1.5.3. The acquisition of rights through originating |
|
and derived title |
14 |
1.5.4. ‘Loss’ of a right. Transfer, limitation, lapse |
|
and other causes |
15 |
1.6. Rights |
16 |
1.6.1. Rights and legal situations |
16 |
1.6.2. The idea of ‘subjective rights’ and the Historical |
|
School perspective |
16 |
vi |
Contents |
|
|
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1.6.3. Abuse of a right |
17 |
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|||
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1.6.4. Property rights and choses in action |
18 |
|
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1.6.5. Property rights as enumerated |
18 |
|
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1.7. Obligations |
19 |
|
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1.7.1. Basics |
19 |
|
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1.7.2. Sources |
20 |
|
|
1.7.3. Varieties of obligation |
21 |
|
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1.7.4. Pecuniary obligations and the ‘nominalist’ principle |
23 |
|
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1.7.5. Default by the obligor; notice to perform |
24 |
|
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1.7.6. Obligee’s default |
25 |
|
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1.7.7. Termination of obligations. Performance |
26 |
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1.8. Possession. Detention |
27 |
|
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Chapter II: Natural Persons |
29 |
|
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2.1. Personality and the protection of individuals |
29 |
|
|
2.2. Legal capacity. Birth and death |
29 |
|
|
2.2.1. Legal capacity in general |
29 |
|
|
2.2.2. Special legal capacity and its limits |
30 |
|
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2.2.3. Acquisition and loss of legal capacity |
30 |
|
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2.2.4. Domicile and residence of the natural person |
32 |
|
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2.3. Capacity to exercise rights |
33 |
|
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2.3.1. Basics |
33 |
|
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2.3.2. Emancipation |
34 |
|
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2.3.3. Natural incapacity |
34 |
|
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2.3.4. Disqualification |
35 |
|
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2.3.5. Disability |
36 |
|
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2.3.6. Citizenship |
36 |
|
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2.4. Personality rights |
37 |
|
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2.4.1. General characteristics. Person and ‘status’ |
37 |
|
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2.4.2. The right to life |
39 |
|
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2.4.3. Sexual identity, rectification and change of sex |
40 |
|
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2.4.4. |
Sexual freedom |
41 |
|
2.4.5. Privacy and private life |
41 |
|
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2.4.6. Privacy and data protection |
42 |
|
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2.4.7. |
Other personal rights |
43 |
|
2.4.8. |
Personal identity |
45 |
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2.4.9. Rights of the person relating to the person’s ‘status’ |
45 |
|
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2.4.10. Means of protecting rights of the person |
46 |
|
|
Chapter III: The Family and Succession |
47 |
|
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3.1. Individual, family and social groupings |
47 |
|
Contents |
|
vii |
3.2. The ‘patriarchal’ family and the ‘nuclear’ family. |
|
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Family, property and contract |
48 |
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3.2.1. From the patriarchal to the nuclear family |
48 |
|
3.2.2. The economic function of the family |
48 |
|
3.3. The family in the constitution and recent laws |
49 |
|
3.3.1. The family as a natural society and |
|
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the equality of spouses |
49 |
|
3.3.2. The position of children and the educational |
|
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role of parents |
50 |
|
3.3.3. The de facto family |
50 |
|
3.3.4. The reform of family law |
52 |
|
3.3.5. The legal and social position of women |
54 |
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3.4. Concepts and measures in family law |
54 |
|
3.4.1. Relatedness and affinity |
54 |
|
3.4.2. Material support |
55 |
|
3.5. Weddings. Types of marriage |
56 |
|
3.5.1. Civil weddings |
56 |
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3.5.2. Marriage and the Concordat with the Holy See |
58 |
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3.5.3. Promise of marriage |
59 |
|
3.6. Marriage relations. Personal relations between spouses |
59 |
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3.6.1. Personal duties |
59 |
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3.6.2. Separation |
60 |
|
3.6.3. Divorce |
61 |
|
3.6.4. Judicial intervention in other family ‘crises’ |
61 |
|
3.7. Property relations between spouses |
62 |
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3.7.1. Joint estates |
62 |
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3.7.2. Community property by agreement |
63 |
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3.8. Legitimate issue |
63 |
|
3.8.1. Principles of legitimate issue |
63 |
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3.8.2. Adoption |
66 |
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3.9. Illegitimate issue |
69 |
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3.9.1. Recognition of natural children |
69 |
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3.9.2. Judicial declaration of maternity and paternity |
70 |
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3.9.3. Present legal position of children born of |
|
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adulterous or incestuous relationships |
70 |
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3.9.4. The relation between legitimate and |
|
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natural issue |
71 |
|
3.10. Succession, property, family |
72 |
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3.10.1. Terminology |
72 |
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3.10.2. Constitutional principles |
72 |
|
viii |
Contents |
|
|
3.11. Elements of succession law |
73 |
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||
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3.11.1. Intestate, testamentary and necessary succession |
73 |
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3.11.2. The estate |
74 |
|
3.11.3. Legacies |
76 |
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3.11.4. Capacity to inherit, unfitness, representation, |
|
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accretion |
76 |
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3.11.5. Common inheritance, severance, hotchpot |
78 |
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Chapter IV: Intermediate Communities |
79 |
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4.1. Individual members of groups |
79 |
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4.1.1. The group |
79 |
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4.1.2. Bodies and intermediate communities |
79 |
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4.2. Legal personality, ‘form’ and ‘reality’ |
80 |
|
4.2.1. Historical background |
80 |
|
4.3. Artificial persons |
82 |
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4.3.1. Basic concepts |
82 |
|
4.3.2. Patrimonial autonomy |
82 |
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4.3.3. Capacity to have and to exercise rights |
83 |
|
4.3.4. Residence of an artificial person |
83 |
|
4.4. Recognised associations |
84 |
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4.4.1. Internal affairs |
84 |
|
4.4.2. Judicial intervention |
86 |
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4.5. Foundations |
86 |
|
4.5.1. Endowing the foundation |
87 |
|
4.5.2. Constituting a testamentary foundation |
87 |
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4.5.3. Protection of beneficiaries |
88 |
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4.6. Non-recognised associations. Political parties and |
|
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trade unions in private law |
88 |
|
4.6.1. The regime governing association activities |
89 |
|
4.6.2. Committees |
89 |
|
4.7. Voluntary and non-profit organisations |
90 |
|
4.7.1. Voluntary organisations |
90 |
|
4.7.2. Socially beneficial non-profit organisations |
91 |
|
Chapter V: Business and Companies |
93 |
|
5.1. The entrepreneur |
93 |
|
5.2. The entrepreneur’s statute |
95 |
|
5.3. The property of the enterprise |
95 |
|
5.4. Trademarks and competition |
96 |
|
5.5. Copyright and industrial inventions |
97 |
|
5.6. Contracts of association |
98 |
|
5.7. Common activity and company contracts |
99 |
Contents |
|
ix |
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5.8. Types and classification of undertakings |
100 |
|
5.9. Various aims of a company contract |
104 |
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5.9.1. Co-operatives, consortia, consortial companies |
104 |
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5.9.2. Secret and ostensible companies |
104 |
|
5.10. Company fortunes |
105 |
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Chapter VI: Property and Goods |
107 |
|
6.1. Goods and things in the legal sense |
107 |
|
6.1.1. Basic concepts |
107 |
|
6.1.2. The regime of property ownership |
108 |
|
6.2. Legal circulation of property |
111 |
|
6.2.1. Rules on acquisition |
111 |
|
6.2.2. Circulation of immoveable goods and functions |
|
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of property registers |
112 |
|
6.3. Property |
113 |
|
6.3.1. Terminology explained |
113 |
|
6.3.2. Models of property. Feudal, absolute and |
|
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relative property ownership |
114 |
|
6.4. Property in the Constitution. Work and savings |
118 |
|
6.5. Private property and the public interest |
119 |
|
6.5.1. The limits placed on private property |
119 |
|
6.5.2. Social function of property |
120 |
|
6.5.3. Compulsory purchase |
122 |
|
6.5.4. So-called acquisition by occupation |
122 |
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6.5.5. Property and public use. Environmental and |
|
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cultural heritage |
124 |
|
6.6. Property: building property |
125 |
|
6.6.1. The right to housing and the accommodation |
|
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problem |
125 |
|
6.6.2. The right to build and planning controls |
126 |
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6.6.3. Lettings, tenancies and leasing |
126 |
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6.7. Property: agricultural land, rural property and |
|
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uncultivated land |
128 |
|
6.8. Property and private interest |
129 |
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6.8.1. Concepts |
129 |
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6.8.2. Timesharing |
130 |
|
6.9. Co-ownership and condominium of buildings |
131 |
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6.9.1. Co-ownership: legal nature and regulation |
131 |
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6.9.2. Condominium |
132 |
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