Association Case Study(Cass. 13 March 1987, no. 2648)

Prof. Avv. Bruno TassoneDocente di Principles of Civil Law

LUISS Guido Carli

The Parties “ENAL” is a non registered association which provides several

after-work services to employees; “Directors” are the persons entrusted to manage ENAL

according to its Articles of Association and By-laws; “President” is the person vested with the power to represent

ENAL with third parties upon an act of delegation of Directors (executed through a Board of Directors resolution, which vests the President with the said power);

“Manager” is the person entrusted by President to manage ENAL Shop, that is an independent activity within ENAL premises;

“Company” is the creditor who provided the Shop with goods and who, now, claims the subsequent payment.

The Claim The Company sues Directors and President together, but

not Manager, claiming that all of them are jointly and severally liable for the undertakings made by the Manager.

Directors formally delegated President to represent ENAL with third parties (with an act relevant according to Arts. 1387 and ff. c.c.) and President signed a document with Manager according to which “Manager can autonomously manage the Shop and represents the President of ENAL”.

Therefore, the activity carried out by Manager and its consequences have to be “referred” to the President and the Directors pursuant to Art. 38 c.c. as carried out “in the name and the interest” of ENAL itself.

The Defense President and Directors (“Defendants”) object that

Manager is the only person responsible for the obligations stemming from the undertakings he entered.

Company has not proved that the undertakings were made “in the name and the interest” of ENAL and that they can be referred to the association.

On the contrary, the said undertakings were made by Manager in his sole interest as he had full autonomy in the management of the Grocery Shop: he worked for himself and not for the association, so that Art. 38 is non applicable to the case.

The Defense (II)

Defendants also object that Art. 38 c.c. is unconstitutional as the provision conflicts with Art. 3 Const. in the light of Art. 2268 c.c.

Indeed, the latter states that members of simple partnerships - who are jointly and severally liable with the company for all its obligations - can ask creditors of the partnership to try to collect on the assets of the latter before attacking the personal assets of members (beneficium excussionis).

Questions1) Can the Company get the money from

Manager?2) Can the Company get the money from

President?3) Can the Company get the money from

Directors?4) Are they jointly and severally liable with

one another and, if so, under which basis?

5) Is Art. 38 unconstitutional?