Lecture 2 Private Law

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Art. 2 CC - Majority of age. Capacity to actMajority is fixed at the age of eighteen. Majority of age gives access

to the capacity to perform any act for which no other age is required.

Art. 1498, paragraph 2, CC - Payment of priceIn absence of accord and save other forms of usage, payment must be

made at time of delivery and where said delivery shall be performed.

Structure of legal provisions

The main

characteristic

of the legal rule isthat it is abstract:it dictates a certain

conduct valid

for any number of

situations

If somebody inflicts unfair injury to others,thensuch person must compensate the damage inflicted

For each single occurence (if ) the rule of law sets out specific effect (then )A situation oroccurence, coming under a rule

of law is referred to as thebase situation (fattispecie)

Art. 2043 CC - Compensation for an unlawful actAny deliberate or culpable act that causes unjust damage to others

obliges the person who committed the act to compensate for the

damage.

The logical scheme

underpinning

the rule of law is

invariable

If thenPrevision Provision


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Constitution

Founding treaties of theEuropean CommunitiesOrdinary law (and otherequivalent legislative measures)

CustomsRegulations(except E.U. regulations)

Principle known ashierarchy of sources:A lower source may not conflict

with (= rule adversely to)

a higher source

1. When of equal weight,the subsequent sourceprevails over the previous one(= presumption of

implicitrepeal)

2.

Sources of law in the Italian legal system


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Constitution

Founding Treaties of theEuropean Communities

Ordinary law and equiva-lent legislative measures

Contains fundamental principles of legal system

Came into force on 1st January 1948

It is an air tight Constitution

It entrenches the Republic (Art. 139 Cost.)

EEC; ECSC; EAEC E.U.

They have supremacy over laws in so faras they are themselves sources of law

Regulations

and directives

What is a law and how is it generated?

What are the other e uivalent le islative measures?

m

ay not be subject to

constituitional modifications

Art. 249Treaty on European UnionA regulation shall have general application. It shall be binding in its entirety and directlyapplicable in all Member States

A directive shall be binding, as to the result to be achieved, upon each Member State to whichit is addressed, but shall leave to the national authorities the choice of form and methods.


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1.) Approval by Parliament (Chamber of Deputies+Senate of the Republic)

2.) Promulgation of the law by the President of the Republic

3.) Publication in the Official Gazette: takes effect,in general, 15 days after (vacatio legis)

Legislative Decree(decreto legislativo):

Procedure to law approval

1.Specific objective2.

Limited period of time

3.Guiding principles and standards must be fixed

directly by Parliament

Law decree (decreto legge): solely

in situations of extraordinary necessity andurgencyLegislative measures equivalent to ordinary law

Regional and provincial Law (solely Trento and Bolzano): on any issue not under

the jurisdiction of the State

Objective of public notice

Statute is presumed known


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Abrogative

referendum: - a referendum may not introducenew laws, only repeal existing ones

Legislative measures equivalent to ordinary laware Codes (Civil Code, Criminal Code etc.)

Exclusive oftax law, budget, amnesty and pardon and ratificationof international treaties

The Constitutional Court(Cortecostituzionale)has to decide on its admissibility

What if a law (or an equivalent legislativemeasure) violates the Constitution?

The husband is the head of family; the wife is under duty to accompany him whereever he

decides to establish residence.

Art. 144 CC

The husband is under duty to protect the wife, to keep her and to provide all necessities of life

in proportion to his means.

Art. 145 CC

Art. 3 Constitution

All citizens have equal social dignity and are equal under the law, regardless of sex,race, language, religion, political creed, personal and social level.


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Decision by Constitutional Court is (only) possible if theres a pending suit.

Peter and Mary are

husband and wife

1.

Peter asks a lawyer

to take legal action against Maryto nullify the (contract of)

gift of the villa as a violation

of Art. 781 CC

4.

7 years later and after

bitter wrangles

Peter and Marydecide to separate

3.For their 5th wedding anniversary

Peter gives Mary

his villa by the lake Maggiore.

2.

Not knowing how to counter

Peters demand, Marys

lawyer raises the

issue of constitutionality

of Art. 781 CC with Art. 3 Const.

5.

The court holds thatthere is a point at issue,

suspends decision and

submits the point to

the Constitutional Court

6.

Both Peter and Mary ignore

the ban as under Art. 781 CC

Art. 781 CC

Within marriage, the spouses may grant each other only such favours as are in conformity

with customs.

Lecture 2 Private Law

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