Private law - 1st year Bocconi, Appunti di Diritto Privato

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Structure of legal prevision..............................................................2 Sources of law in the Italian legal system.........................................3 What if a law violates the constitution?............................................3 Interpretation of legal provision.......................................................4 Analogy............................................................................................5 Legal Capacity and Capacity to Act..................................................7 Capacity to act.................................................................................7 The right of ownership (not property).............................................10 The concept of possession.............................................................12 Right of usufruct.............................................................................14 Compulsory servitudes...................................................................16 Common ownership........................................................................17 The civil code.................................................................................17 Concept of contract........................................................................17 4. Form...........................................................................................19 Invalidity........................................................................................22 Nullity.............................................................................................23 Action for annulment......................................................................24 Vices of Will (vizi della volontà)......................................................25 Fraud..............................................................................................26 Standard Trade Terms ciao............................................................27 Contingent conditions....................................................................31 Termination of a contract...............................................................33 Recission of the contract................................................................34 Law of succession...........................................................................36 The drafting of a will.......................................................................37 Testamentary formalities...............................................................38 1 di 39 Private Law —> relationship between private individuals Paul leaves 1.000 and would have paid the day after 4.000 Bill enters and pays 30.000 to buy the paint (after the dealer said is not for sale). They bump into each other, who gets the paint? How do we solve it? A. Paul gets it, he bought it first, we stick to formal logics, the dealer cannot sell something that does not belongs to him and the paint was Paul’s property so will never be Bill’s property. a. ’Fairest’ solution b. If he takes the paint means that ownership will be transfer only after verifying that the seller has the right to sell it, that he is the owner, but there is no public register on movable properties (out of cars, aircrafts and ships) B. Bill prevails, he was not aware of the prior sale and he paid the bigger amount of money. a. Facilitates the sell, he is not to blame because they entered in an agreement of transfer ownership so he is the new owner, no fear he did everything correct b. Could be unfair to the first owner that already had an agreement, but in any case he can keep what he bought, it is his legitimate property. If you leave a deposit there will always be the risk that somebody else will buy it. Art. 1153 - effects of acquisition of possession “Any person to whom movables are transferred by another person who is not owner of that movable becomes owner by way of possession provided he or she is in good faith at the time of transfer, the movable is delivered, and there is an appropriate title for transfer of ownership.” 3 requibments are provided, Bill is the owner and keeps the painting Bill purchases in good faith —> no knowledge of a previous sell Bill has physical retention —> the paint is handed over physically to him —> no risk Bill has a title to purchase —> sale is a title of transfer ownership (ex. borrowing is not) This is the ‘easy circulation wealth’, protects the interests by law even though it is not the most logic solution. This solves the matter between bill and Paul, but imposes a conduct for future disputes. Structure of legal prevision Art. 2 majority of age. Capacity to act Majority 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 payment of price In absence of accord and where no customs apply, payment must be made at time of delivery and where said delivery shall be performed. If two people do not agree on where and when the price must be paid in here is written when and where the payment must be made Art. 2043 Compensation of unlawful act Any deliberate or culpable act that causes unjust damage to others obliges the person who committed the act to compensate for the damage Somebody drives a car, hit a bike, he compensates the damage because he inflicted an unfair injury. 2 di 39 It can happen also the opposite thing (even though there's an extensive interpretation, the application narrows it). Restrictive interpretation The scope of application is stricter than the provision’s literal meaning. For example, if something happens against your will, and it can be proved you were not okay with it, then you can be exonerated if the fault has to lie with you in other cases. Example = Peter wants to drive Paul’s car. • Situation A = Paul says no. • Situation B = Paul says no and hides his keys. • Situation C = Paul says no and takes the battery out. In this situation, considering Art. 2054, “the owner has equal liability with the driver, if the former cannot prove that transit of the vehicle occurred against his/her will”. Only in situation C, the restrictive interpretation can be applied. Literal interpretation The scope of application is equal to the literal meaning. Example Art. 2 CC ‘majority is fixed at age of 18’ —> eighteen = majority Analogy Analogy happens when a similar rule of law is applied to a base situation which is not ruled by the legal system (there must be a gap in the legal system in order to use an analogy). How to understand if the analogy can be used? • Find a base situation A • Find the line of reasoning behind the article applied • Check if the line of reasoning can be applied to a base situation B as well • If yes, the analogy can be applied • If no, the analogy cannot be applied Where do extensive interpretation and interpretation by analogy converge and diverge? Both are founded on ratio legis, within the meaning of the relevant word (citizen) you can claim that a non Italian is still a citizen, this is an extensive interpretation and now 5 di 39 Case1 Hotel-keepers are liable for any deterioration, in loss or theft of things taken into the hotel by guests. The line of reasoning is that guests should have a safe place in order to leave their things while they are away from home. Can the article be applied for camping sites? Yes, since the line of reasoning is the same. Case2 The duty to pay alimony to a spouse terminates when the recipient thereof remarries. The line of reasoning is that one has to give economic support to the ex spouse if there is not someone else with that same duty. When the supposes remarries, the ex-spouses obligation ends. What happens when the spouse who receives the alimony lives with another person without being married? The analogy cannot be used because without marriage there’s no legal obligation to fulfill the partner’s needs (the two unmarried partners could break up anytime). On this matter there’s a gap in the legal system since you can only recourse to analogy, you cannot give another extensive interpretation like the hotels and campus. Roman law ‘owner of a quadruped is liable for any damage it causes’ —> owner of an ostrich? Theoretically not liable! But the provision is made to prevent from the damage —> it makes no difference if is a dog or a scorpio, we can apply the analogy. Today Art. 2052 CC Damage caused by animals (IT) The owner of an animal, or one who makes use of it, for the period of such use is liable for damage caused by the animal, regardless of whether the animal was in his custody or strayed or escaped, unless they prove that the damage was the result of a fortuitous event So i ask you to bring out my dog —> you are liable Art. 1385 CC The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under his custody, or whether it had strayed or escaped. So i ask you to bring out my dog —> you are liable Section 883 BGB (German Civil Code) - Liability of animal keeper If a human being is killed by an animal or if the body or the health of a human being is injured by an animal or a thing is damaged by an animal, then the person who keeps the animal is liable to compensate the injured person for the damage arising from this 2 restrictions to analogy: 1. With criminal provision 242 StGB(German Criminal Code) – Theft Whoever takes a movable thing belonging to another person with the intention to un- lawfully appropriate themselves or somebody else of the thing, is punished What if somebody pinched electricity secretly attaching to an electric pole? Now we ask ourselves, can we use ‘movable thing’ extensively to include electricity? No! —> no extensive meaning, can I use analogy? No! Criminal provision exclude analogies. The next day they will make a new provision so anyone is in the position to know that if doing so they will be punished by 242 statement. 2. With extraordinary provisions (presumption of edam ratio) Art. 2756 CC- Claims for services and expenses in connect. with conservation and improvement [The creditor] … for services and expenses in connection with the conservation and improvement of movable property has a privilege on such property… If you bring your car to the workshop, the day after you come with no money and tell them you will pay later, they can refuse to give you your car. So the creditor can retain the property subject to the privilege until his claim is satisfied. This provision refers to movable properties, can we apply this to immovable property? A plumber comes to fix the kitchen, if I don’t pay can he refuse to leave? No! Movable property is something and immovable property is the opposite so I cannot apply this provision by analogy. 6 di 39 Art. 2756 is extraordinary because usually the owner of something has the right to have it and no one can refuse to give it back to him, ..> is an extraordinary provision —> analogy cannot be applied. Legal Capacity and Capacity to Act Peter and mary happily married with a child of 4, own jointly a controlling stake in a large corporation and own immovable properties, both die in an accident. 1. Who is entitled to rights and duties? 2. Who may be vested to rights and duties? 1. Legal capacity - entitlement to rights and duties corresponding to the notion of legal person are originates at birth. So she belongs the wealth 2. Entitlement of the legal person to fulfill acts under the law = to exercise rights and duties. So she cannot sell, for instance, the shares in the corporation Legal capacity is lodged indistinctly in all humans beings. The sole requisite to such legal status is birth. The condition know as viability = aptitude to continue to live is no requisite to the legal capacity that is lodged even if 10 minutes after birth the child dies. —> Italian legal system access testamentary in favor of the child to be. Also dispositions in favor of unconcieved persons are admissible, provided the beneficiary will be conceived by a person living at the time of the disposition (I can make a testament for my gran gran gran nephew who is not conceived at the time I’m making the will so no one can sell or do anything with my wealth until he arrives). Peter and mary have a conspicuous estate, they conceive a child together —> Peter dies, Mary inherits the estate. —> Mary dies giving birth to a child. A. Child is still-born —> no legal capacity, everything goes to Mary’s relatives B. Child is born —> he inherits everything C. Child is born and dies 10 minutes after —> has the legal capacity —> both the parents will inherit the overall value. Legal capacity ends solely upon death so it ends the status of legal person. ‘Civil death’ = person condemned to imprisonment is no longer subject to deprivation of legal capacity. But how do we consider a person death? A person that will never recover from a medical point of view, death is certified upon irreversible cessation of all brain functions. Presumption of simultaneous death = two persons die in the same circumstamces, presumed at the same moment —> the wealth is divided. Capacity to act Art. 2 CC says that the capacity to act comes reaching age of majority, but this is a legal fiction, for the legal system it is not important if there is a brilliant and smart 17 years old even though the reason we wait 18 is because we have to understand more the world around us. Vcvs a non capable 18 year old boy has the capacity to act. 1. When an individual with no legal capacity to act, a minor for example, enters into a contract, this is voidable (annullabile) so a court may be called to cancel it. Ex. A 15 years old boy sells his watch, the parents can ask for it back Why is that so? To protect somebody that did not have the ability to understand values. 7 di 39 Art. 1389 CC - Capacity of the agent (rappresentante) and the principal (rappresentato) When a power of representation is conferred by the principal, it is sufficient for the validity of a contract made by the agent that they have ability to understand and intend , taking into account the nature and content of the contract and provided always that the principal has the capacity to act. If somebody enters to a contract for somebody else it is sufficient that the agent has the ability to understand and intend the principal has the ability to understand and intend (gained at age 7) My parents give me money to go to buy something, I’m a minor, but over 7 and acting on behalf of my parents that have the capacity to act. Of course depends on the content of the contract, of the child is buying some bread or an apartment. So if the minor in behalf of the parent the contract cannot be annulled. The right of ownership (not property) Art. 835 CC - Content of the right The owner has the right ti enjoy and dispose of things in a full and exclusive way, within the limits of and observing the obligation established by the law (to know by heart) - Enjoyment = material enjoyment - Disposal = legal enjoyment (own an apartment and rent it to somebody else or selling it is a way of disposing it) - Fullness = you can do whatever you want that is not prohibited, so I have a car and I can destroying it for example - Exclusivity = you have rights that others don’t, you can excuse anyone else for example having a fence around my property. Limits and obligations - for immovable properties there are some restrictions. Art. 835 CC - Elements of interference (Immissioni) The owner of a piece of property may not obstruct the smoke or heat [...] coming from neighbouring property, if it does not exceed normal tolerability, having regard also to local conditions. In the application of this privision, the judicial authority must reconcile the needs of production with the rights of the owner. Account can be taken of the priority of a determined use. For example the owner of a property cannot interfere with neighborhood property (loud music, heat or smoke). So the owner cannot exceed normal tolerability so the juridical authority must reconcile the needs with the rights of the owner. 3 elements of interference Local conditions —> depends also o the circumstances, where do you live, residential or industrial zone? … Needs of production vs rights of the owner - if the interference is given by an economic activity a judge is more permissive (loud music from a pub vs private party) that’s because the pub has an income, pays taxes etc. Priority of a determined use - case1 Paul buys a house and after notices a disco nearby that is there for the last 12 years. Case2 Paul buys a house and after a few years a supermarket nearby becomes a disco, this two cases will be judged differently. 10 di 39 There are a few alternatives: 1. Isolation or reduction of the elements of interference 2. compensation of the damage 3. Restoration to former state/cessation. Art. 948 CC - action of revendication The owner can recover the thing (he owns) from whoever has possession of it or is golding it, and can prosecute the action even if that person, after the complaint, has ceased to posses or to hold the thing Action —> reference to civil procedure law, = you can file a juridical action in court Ex. 1 In the sale of a painting, assuming that the owner of the art center sold the painting both to Paul and Bill, and neither Paul nor Bill picked up the painting, in case the seller refuses to hand it over to Paul ... the latter (quest’ultimo) has to file an action of revendication to claim for it. The transfer of ownership here has occurred with the first purchaser, so the first one can actually file an action of revendication Ex. 2 If you lend your book to a friend of yours, and he refuses to return it to you, you have the right to file an action of revendication to claim for it 3 requirement to file action for revendication 1. … 2. … 3. The property has to be handed over to the person (who does not give it back) Ways of acquiring the right of ownership: We need to make a distinction between the original and derivative title - Derivative • Contract - if you signed a contract that gives you the ownership • Succession - if you inherit something - Original • Occupations - referred to things that has been abandoned or animals that are hunted or fished. Example John leaves a chair near a bin, Paul walks sees the chair and takes it, John changes his mind, comes back and sees Paul with the chair. Does Paul have the duty to return the chair to John? No, he can refuse, acquisition of the right of ownership is done for occupation, he has a brand new right of ownership. There are two requirements: - Tangible elements (physically grabbing the chair) - Psychological element (grab the chair with the intention of becoming owner) • Found movables - whoever finds movable things must bring it back to the owner, if he does not find the owner he should bring it to the lost property office and if a year has passed and no one comes, you become owner of the movable or its price if the circumstances required its sale. • Usucapito - (explained after concept of possession). Ex. Pat sells the house to Paul who sells it to John who sells it to Rebecca, but now we discover that pat was never the owner so also the others. Solution: continuous possession, everybody acted like he was the owner (because they thought they were) so they had possession, all of them. From pat to Rebecca sono passati 22 years. After an ordinary term of 20 years the ownership of the house is acquired by usucaption so now Rebecca is owner by original title. And this reverse also to movable properties, why does usucaption exists? Limit the researches ti the last 20 yers and to promote the active use of resources, if you act like you are the owner your are not, but if this situation goes on for 20 years you become it so again to promote the circulation of goods 11 di 39 Two cases of the painting, you cannot agree that failing to meet the terms transfer you right of ownership (creditor and borrower (debtor)) of what is given to you in guarantee fro lending a loan. What they can do is that the owner sells the painting himself so if it is more that the loan he will tale the money. If the creditor sells the painting and is not the owner because the contract is void and the Japanese that buys the painting is not the owner either so the painting has to be returned to Paul, this is a theoretical acquiring ownership by derivative title. There is one exception: The concept of possession Art. 1153 CC - effects of acquisition of possession. Any person to whom movables are transferred by another person who is not owner of that movable becomes owner by way of possession provided he or she is in good faith at the time to transfer, the movable is delivered and there is an appropriate title for transfer to ownership 3 conditions: (possession means title, of ownership) 1. Purchaser in good faith —> he did not know that the seller has no right to sell 2. Physical retention —> he has to physically pick up the painting 3. Purchaser has title to purchase —> the sale is an appropriate title to transfer ownership If these three requirements are met the purchaser does not have to return it. (Exclusively for movable properties) because for movables you cannot know if somebody is the owner or not so we talk about good faith, while in immovable properties everything is registered so I can easy check if the seller is the owner. The purpose of this provision is that somebody that is in good faith is protected —> promotes the circulation of goods. You are possessor if you behave as you are the owner. Art. 1140 - possession Possession is such power over a thing as is expressed un an activity corresponding to the exercise of (the right of) ownership or limited right in property. (2)One can posses directly or through another person, who retains the thing. - by heart In order to act like you are the owner somebody else could be holding the thing that you ‘possess’, this is the second part which is stating the obvious, the owner of the apartment who seeks payment of the rent from a tenant is a possessor. Does a thief have possession? He acts like he is the owner —> yes Art. 1140 CC, Whether such conduct flows from the exercise of a right or not, i.e. whether the person acting like an owner does so because they are entitled to do so, in short whether such “power over a thing” is lawful or unlawful is irrelevant in order to have possession. Possession — retention Depends on external facts, on how I act if I have something and I am about to dell it, I act like to is mine —> I have possession. … Presumption that assist possession - Presumption of intermediate possess - one does not need to prove that they had possession during the time in the middle (I had it 50 years ago, I have it now, period: no one questions the time in the middle). 12 di 39 Possession refers on how a person behaves Ownership refers on legal rights If you enjoy usufruct, and if the situation lasts for more than twenty years, does Paul acquire the right of usufruct by usucaption (continuously possession over time)? Is the usufructuary possessor? Usucapion = continuous possession over time, yes he is possessor. (Given that, even if he has to eventually give back the apartment, during the time of usufruct he behaves like the owner, therefore possession comes into place). He acts as if he was the owner, so there's no need to have retention of the thing, either. It necessarily implies that the usufructuary is possessor because he acts like he is the owner. But what does the usufructuary and what does the owner possess? Usufructuary right of usufruct = right of possession Owner right of ownership. Art. 1140 CC - Possession Possession is suche power over a thing as is expressed in an activity corresponding to the exercise of the right of ownership or limited right in property. Ex. Paul, who was originally given the use of real estate to live in by a friend as a courtesy, remains there for a considerable period of time. At some point, he legins to undertake the normal maintenance costs himself. However, he applies to the owner for extraordinary maintenance costs. The owner also pays the taxes due as a result of ownership of the real estate. Paul will acquire after 20 years the right of usufruct for usucapion. Can the usufructuary acquire the right of ownership at a certain point? You have to posses the right of ownership and you should start acting like you are the owner for a relevant period of time. —> Art 1164 CC - Transformation of basis of possession One who has possession corresponding to the exercise of a limited right in property cannot acquire ownership of it by usucaption unless the basis of his possession is changed due to a cause emanating from a third person or by force of an objection raised by him against the right of the owner. The time necessary for usucaption runs from the date on which the basis of possession was changed. (also here you should act like owner for 20 years) Praedial servitudes Art. 1027 CC - Content of right A predial servitude of a burden imposed on a land (servient) for the utility of the other land (dominant) belonging to a different owner . Refers only to immovable property. There are two owners with two parcels of lands, owner A that is the dominant has the right of going on the parcel B and servant B must let him pass because he has to access to his territory. Also if the dominant or servant land are being sold this rights remains for whoever is the new owner. General principles applicable to servitudes 1. Nemini res sua servit - a servitude is a legal right in property on somebody else’s land (if I owned both lands this servitude is not necessary) 2. Servitudes will have to be exercised ‘civiliter’, by creating the minimal burden on the servant land => no what’s in the image [If a servitude 15 di 39 collect water has been established, the quantity to be collected is restricted to the amount of water necessary for the dominant land.?.] 3. Servitudes consists in a relationship between pieces of the land: hence, they cannot consist in an obligation of doing s.th. by the owner of the servant land 4. The pieces of land have to be relatively close, this does not mean they have to be attached. Compulsory servitudes Art. 1051 CC - Compulsory right of way The owner whose land is surrounded by others' land and who does not have access to the public way [...] has the right to obtain a right of way over neighboring land for the cultivation and the convenient use of land. The right of way shall be established in that place by which access to the public way is the shortest and results in least damage to the land over which it is allowed. If you were granted to go over your neighbor’s land to get somewhere, but there is also a public way (longer) you get to the owner of that land and negotiate with him, if he says no the dominant can go to court. The reason behind it is that is in the legal system’s interest that everybody access their piece of land —> if you don’t have access of a public road you go to court and get that right. Art. 1052 CC - Compulsory right of way in favor of non-enclosed land The provisions of the preceding article can also apply if the owner of land has access to the public way, but it is unfit for or inadequate to the needs of the land and cannot be enlarged. The right of way can be granted by the court only when it finds that the demand responds to the requirements of agriculture or industry. They have to be in a position to put that electricity … so they have the right to file action in court but they can negotiate with the owner of that piece of land and pay him. Important distinction: • Affirmative servitudes - entitling the owner of the dominant land to a ‘direct’ use of the servant land • [right of way, right to collect water] • Negative servitudes - obligation not to do something by the owner of the servient land • [servitude not to build or not to erect a net floor etc. ] • Continuous servitudes - in order to exercise them, no action whatsoever has to be taken • [servitude not to build or not to erect a new floor etc] • Discontinuous servitudes - an active conduct by the holder of the servitude is necessary • [right of way; right to collect water..] • Apparent servitude - apparent and permanent ‘infrastructure’ is necessary in order to exercise the servitude • [right of way, servitude related to n aqueduct etc] • Non-apparent servitudes - no apparent and permanent ‘infrastructire’ exists in favor of the dominant land • [servitude not to build or not to erect a new floor] Why have these distinction been made? You can acquire a servitude through agreement, by law and by usucapion because and therefor by possession. Servitude is a limited right of property and in that same 16 di 39 Art. 1053 - right of way for electric lines Every landowner is bound to give a right of way through his land to electric lines, in conformity with the way you can loose the servitude of your property if you don’t exercise it. What if the owner of the servant land places a gate what do you do? You file action for recovery of possession, your possession has been taken away violently. Art 1168 CC - A person who is violently or secretly stripped of possession can sue the taker for recovery of possession. Restoration of possession must be ordered by the court based on common knowledge. Common ownership The shares of participants are presumed to be equal. Can be many types of common ownership, but I check the book. The civil code Sources of obligations - obligations rise from contracts, unlawful acts or any other act or fact which is capable of producing obligations under the law. • Contract - bill buys a thing —> contract of sale, the obligation arises for the purchaser to pay the price • Unlawful act - Paul does not obey a road sign, causes an accident obligation arises to compensate the damage • Any other act or fact - bill promises to pay 100$ to whoever finds his do, an obligation arises, the so called public promise. Patrimonial nature of performance - The performance constituting the object of the obligation shall be economically valuable and shall correspond to an interest, even if not patrimonial, of the creditor. • Economically valuable —> the requirement limits the application of the law of obligations:- it does not apply to right and duties within family law! • Interest of the creditor —> Tom buys a ticket to go clubbing; his/her interest is not patrimonial, though there is still an obligation to allow him/her in the club. Essential elements of any obligation are: 1. active subject (= creditor); 2. passive subject (= debtor); —> “Creditor" does not solely refer to the person to whom money is owed, but to the person to whom any performance whatsoever is owed by another person, the "debtor"! 3. a performance capable of economic evaluation. Concept of contract Art. 1321 CC - Definition A contract is the agreement between two or more parties to constitute, regulate or extinguish a legal relationship having economic content Art. 1322 CC - Contractual autonomy Parties are free to determine the contents of the contract within the limits set down by the law … Parties are also free to enter contracts of the type that are not specifically provided for by law, so long as they are directed towards interests deserving of protection according to law 17 di 39 In order to meet the written form requirement it has to be: - Private writing —> it has to be signed If I want to sell a house I just have to put everything in writing, must have the signature of the seller and the purchaser, it is the only requirement (no orally agreement exists). - Written document with authenticated signature - signatures must be authenticated by an authorized person (notary for example) If the signature is not authenticated one of the parties can change his mind and just say that the other faked his signature —> authenticated signature = < risk. - public deed —> the whole content is authenticated, the ‘authorized person’ (notary) ascertains tear the content of the document corresponds with the will by the declarants. If someone claims that what the notary ascertained was declared to him is false that person must initiate a criminal suit. The authentication covers the signing in case if a document with authenticated signature and a public deed What content of the contract has to be drafted in writing in order to meet the form requirement laid down in art. 1351 cc? Bill is the seller of the right of usufruct if an immovable, and John the prospective usufructuary, they reach an oral agreement as to the price. In order to confirm his willingness to pay for the right of usufruct, John makes an advanced payment of 1.000 to bill. Before handing the cheque , John asks bill to sign the cheque book as a ‘receipt’. Does the signing of the cheque book meet the form requirements? No, it doesn’t as you can’t tell the details of the sell. To meet the written form requirements the reciprocal will to enter into the relevant contract has to be fixed in written form, including all essential elements of the contract the parties intended to enter into. A simple signature is not sufficient to meet the written form requirement (for the establishment and transfer of the right of usufruct on immovable property). Parties to a contract did not put their will to - respectively - establish (= sell) and be granted (- buy) the right of usufruct in writing ... nor is there any way) to determine - by merely referring to the cheque book- the essential elements of the contract (for instance, the right transferred or the price agreed). A different rule applies when the legal system requires the contract to be evidenced in writing. in this case some written memorandum or note of the contract is sufficient to meet the requirement to have a contract evidenced in writing. MANCA UN PEZZO In english contract law the requirements of form are not a significance feature, the formal requirements are: - A contract must be evidenced in writing - A contract must be made in writing - A contract must be made by deed (= must be signed by the individual maker of the deed) Form requirements have 3 functions 1. Evidentiary function 20 di 39 2. Cautionary function (it acts as a check against inconsiderate action) 3. Chanelling function (formalities provide a simple and external test of enforceability) MANCA UN PEZZO Example: 7) Bill wants to sell his 45 m2 flat. The asking price is € 220,000. 8) Paul wants to buy his son, who studies in Milan, a new flat. 9) Paul visits Bill's flat, likes it and decides to buy it for € 220,000. 10) P aul and Bill enter into a contract of sale in the form of a (mere) Private Writing. 11) T hey agree that the flat will be handed over to Paul in two months" time and that at that time they will finalize the sale in the form of a Public Deed. 12) T wo weeks later John gets to know that Bill wanted to sell his flat. At first Bill tells John that he has already sold the flat. 13) … but since John offers € 250,000, Bill finally agrees to (re-)sell him "his" flat. Who has the right to "keep" the flat? Paul or John? Whoever has registered his/her/its purchase first, in the Land Register.!! To the acquire ownership on immovable property good faith is not required. Registration in the Land Register requires, at least a Written Document with Authenticated Signatures, and thus the notary is essential. The person who registers first prevails over any other buyer, regardless of the time of purchase. Digital/electronic signature The idea underpinning digital signature is to have the same legal requirements inherent in signing any tangible document. What are the legal requirements implicit in signing a ‘tangible’ document? 1. Identification/imputability - the document comes from the person who is signatory 2. Integrity - the document has not been tampered in (modified) These two are legal requirements, in addition to imputability and to the integrity, which are the requirements of a private writing (simple written form) and so have to be implemented in order for the digital signature to replace the signing of ‘tangible’ documents, other desirable features are: 3. Confidentiality/secrecy - the contents of the document can be known only by authorized persons (—> envelop) 4. Inability to repudiate - a party who has sent or received a message cannot denying having sent or received (—> registered letter) 5. Authentication - identity of the author is witnessed by a authorized person (ex notary, written document with authenticated signatures) 6. Certainty of the date - the date is authentic bu an authorized person or ‘public body’. (—> postmark) What with a trust service provider (= company that will identifies the person)? So there is Paul that wants to share something with Sarah for example, in between them there us the test service provider that identifies both of them. Paul (with public and private key) —> trust service provider —> Sarah 21 di 39 In electronic services we have to pay more attention because there are more risks, there are no guarantees that an email sender for example is really who he claims to be same works for the recipient and there is no guarantee of a confidential - the public and private key are separated, you will know the public kew, but there is no way that you will understand the private key (CPDDPOJ -1 = BOCCONI) - Biijective mapping - there is one and only one private and public key, they are singular - Use necessarily alternate - if you received a message you have lock it with the public key, to unlock it you must use the private and vcvs There is a public register where all public keys are published so everybody know Paul’s public key. What to do: Paul open his computer, inserts a usb key for example so the software recognizes him, applies to the document he wants to send with a pin (private key), at sthis point the document is encrypted and sends it to Sarah. At this point the only way she can decrepit the message is to put the public key of Paul that the can find on the public registers like this the knows that the document was digitally signed by Paul. But there is no confidentiality of information because to decrypt the message you just have to insert the public key which is accessible to everyone. How can you fix this confidentiality issue? To solve this you make Paul use Sarah’s public key like this he will know that only she can open the document, to combine both you make Paul insert his private key (like this Sarah will use his public key and will be sure he is the sender) Paul inserts also Sarah’s public key (like this he will know she will be the only one to open it) European regulations: Electronic signature means data in electronic form which is attached to or logically associated with other data un electronic form and which is used by the signatory to sign; Advanced electronic signature = meets the requirements of art. 26 Art 26 - requirements for advanced electronic signature n. It is uniquely linked to the signatory o. It is capable of identifying the signatory p. It is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable You have to have a device, a certificates that confermantesi the device (so the signature) And in Art 25 is said that abs electronic signature shall have the equivalent legal effect of a handwritten signature. Invalidity We talked about legal and natural incapacity that seeks the annulment of a contract, this is violability —> one form of invalidity. Another type of invalidity is given by the lack of any essential requirement of a contract so the lack of one of the four elements of a contracts brings to nullity and this is the other case of invalidity. What is the distinction between violability and nullity? - Voidability refers in general, to interferes exclusively of one party, the contract is voidable = the party can ask for annulment of the contract so if the party, for example the guardian of a minor, does not want to seek annulment of the contract, this will remain valid. 22 di 39 Vices of Will (vizi della volontà) A party agreed to entered a contract, but made a mistake or was deceived or for duress (with a gun pointed sign to sell your house). art 1427 CC - mistake duress fraud A contracting part whose consent was given in mistake, exerted by duress or obtained fraudulently, can seek annulment of the contact in accordance with the following provisions Mistake You can seek annulment for a mistake if: q. Your mistake is fundamental • When it goes to the nature or subject matter of the contract, is a mistake that presumably in another situation you wouldn’t have entered in that contract. - Ex. I intended to enter in a contract of sale and buy a car, but I entered in a lease contract - Ex. I intended to purchase a mansion, but I discover that in fact I have purchased a yacht • When it goes to the identity of the subject matter of the performance or to a quality of it which, in accordance with the common view or in the circumstances , must be considered a determinant of consent - Ex. I intended to purchase a top-floor apartment having a magnificent view, whereas in fact it was on the ground floor - Ex. I intended to purchase an original Picasso, but I discover that in fact it is a poor reproduction • When it goes to the identity or to the personal standing of the other party, provided that one or the other was a determinant of consent. - Ex. I ntended to grant a loan to Paul, a wealthy man, but I discover that in fact I have provided it to John who is unemployed - Ex. I intended to engage bill as a surgeon, but I discover that in fact bill is an accountant ad it is his birther who is a surgeon. • When a mistake of law was the only or principal reason for the contract - I bought an exoenduve piece of land because u intended to built on, but I discover that in fact it is agricultural land which cannot be built on. r. Has been recognized or could be recognized by the other party • When in relation to the content, to the circumstances of the contract or the standing of the parties, the ordinary careful person could have notice. - Ex. I need 5 meters of fabric to make a pair of trousers - Ex. I’ll buy this television so that I’ll be able to watch TV in india on it - Ex. I’ll buy these alloy wheels because they’ll look good on my mercedes • But what does recognizability mean? - It means that if the contractual partner cannot be blamed for not having recognized the mistake that is, if his conduct is not negligent (to blame), he can rely on the validity of the contract … even if the other party make a fundamental mistake. Natural incapacity = the incapable person must prove bad faith Possession means title = good fail is a fundamental requirement Mistake = recognisability is an essential element 25 di 39 —> it all falls under the broader scope of encouraging circulation of goods! Fraud Art 1438 cc - fraud Fraud is grounds for annulment of the contract when the deception used by one of the parties us such that, without it, the other party would not have entered into the contract. Ex. I bought a gold pen only because the seller guaranteed it was an unique and gave me a forged certificate that it was manufactured in 1912 Ex. I bought a particular software because I was guaranteed that it was compatible with my laptop. To convince me, the seller gave me a forged manufacturer’s leaflet, which expressly stated the compatibility. As it is not true, the software is useless. Art 1440 cc - incidental fraud If the deception (inganno) is not such as to determine consent, the contract is valid, even though, without it, it would have been entered into under different conditions, but the party in bad faith is liable for damages. Ex. I bought an apartment that I really like. I was prepared to pay a high price because I was guaranteed that the electrical wiring had been properly instal-led, and I was given a forged certificate of inspection. - Drink this and you will never be thirsty again - This detergent washes whiter that white What about these quotes? What’s the remedy? A legal system says that anyone is in the condition to tell that this is not true, but if you fail in doing so I have to protect you so I have to prevent them from entering a contract, that’s why a person before entering a contract should have the capacity to intend, to act. What happens if a third party deceives me (not the contractual party) I want to buy a second hand watch, the seller c cannot give me any info about its history or age, a third party, claimed expertise in watches and guaranteed (falsely) that it was an antique. Fraud by omission Ex. In ancient times in the island of Rhodes there was a terrible famine, in Alexandria in Egypt arrived the news a step went with food, but knew that others will reach and do the same so he decided to take advantage of the opportunity and raised the price because in Rhodes they made them believe they are the only ones with food without telling that others are coming. Generally speaking this is fraud because of disclosure of general information because part of a contract must behave in good faith and this is fraud by omission = fraud. Ex. In germany, in a shopping mall that is divided by zones, dress shops, restaurants, supermarket… a shop of clothes sent the list of things that sells to the landlord, but omitted clothes of a controversial brand, Thor Steinar that is associated with extreme right-wing. The landlords demanded the immediate termination, the clearance and the restitution of the premises on the ground of fraud. Has there been fraud by omission from the shop owner? If the landlord would have known about the selling of Thor stenair wouldn’t entered to the contract so we have annulment of the contract, the duty of the shop owner is given also by the fact that the mall can suffer of an economic loss and reputation of the owner. 26 di 39 Duress If somebody points a gun on your head and asks you to sign you obviously say yes, but you did not entered the contact by your own will, otherwise you wouldn’t entered that contract —> is annullable. Ex. Somebody is threatened with a gun to sell his house ok, but if somebody threatens me to punch me is a different situation, but we have to check the conditions. Ex. Paul tells me that if I don’t sell him my house, he will burn down my factory —> no injury to the person, but threaten to my asset contract annullable. But what id Paul is my creditor and threatens to file a petition seeking my bankruptcy with the consequent sale bu auction of my assets, in this case is more complicated. ? Ex. Paul threatens to punch an elderly paraplegic, if he dent sign the contract —> not legal even though is just a punch Art. 1436 CC - Duress against third persons Duress also results in annulment of the contract when the harm threatened concerns the contracting party or his assets, or an ascendent or descendant of the contracting party. If another person is threatened with harm, whether or not the contract should be annulled is decided by a court, having regard to all the circumstances. What happens if duress is entered by a third party? You can still seek for annulment and the justification is that if you refer to the equivalence of fraud and duress in criminal law we have extortion (always worse than fraud). Its an extension for the standard civil code, ‘if you are not to blame the contract is still valid’. - Vices of will or incapacity, give rise to the annulment of the contract. However, annulment is subject to an objective assessment of the impact of the vice’/flaw o the formation of the declarant’s will. • Mistake: fundamental nature of the mistake (I wouldn’t have bought that painting if I knew was a fake) • Fraud: dolls bonus — folus malus • Duresse: reasonable person (normally a reasonable person in normal circumstances wouldn’t have entered that contract) Standard Trade Terms ciao Even if you enter a contract with a bank to create a bank account and you did not even read them or wasn’t aware of them, they are part of the contract (termini e condizioni) and are valid. Art. 1341, paragraph 1, CC - Standard trade terms Standard trade terms that have been drafted in advance by one of the parties are effective towards the other if, at the moment of entering into the contract, that party was aware of them or should have been aware of them using ordinary diligence Ex. If bill takes the ticket for the train, but the train he wants to take has a supplement that he has to pay buying the ticket. He did not know because the guy that sold it to him didn’t tell him so in the train with the controller bill does not want to pay the supplement and the penalty. The point is that in the train station there is a board with 27 di 39 You can challenge the validity of a term for example you buy a car, but you cannot get out of the country you bought it, but you cannot claim that you didn’t know that you had to pay tot. Directive on unfair terms Art 36 ph. 1 - nullity of protection Terms considered unfair pursuant to art 33 and 34 are void. The remaining contract is valid. Peculiarity of this provision is that, while nullity applies to a public interest, here it applies only in the benefit of the consumer —> is a contradiction. If does not benefits the consumer, the court cannot take provvedimenti. Art 34. Ph 4 - assessment of unfairness of terms Terms or parts of terms which have been individually negotiated are not unfair. = if you enter a contract with a bank, you are required by the bank to sign a piece of paper, you do it without reading nothing, you are protected. It is an important provisions because underlines the fact that we all have freedom to sign a contract, but we are also protected even though I fixed the signature and I agreed to all the terms, one week later I decide that I do not agree anymore, the law reconciles the force of contract and the right of the consumer who at this point has no tiniest reading terms and conditions because as far as this contract exceeds from it scopo I am protected. You are protected as a consumer if you were not aware of the contract —> if you have negotiated means you know what you are doing so you do not deserve to be protected. Ex. You purchase something on the internet, the seller is a business, if there is any dispute arising you can file an action about a term in particular and you can do it in Milan, but if you decided together that if any dispute arises the action must be filed in Rome. It is important to say that that the consumer is not protected as a weak subject, as such an approach the underlying would conflict with the principle of freedom of contract. Art 34. Ph 3 - determination of the unfair character of terms: The evaluation of the unfair character of a term has no relation to the determination of the subject matter of the contract or to the adequacy of the compensation payable for the property and services, provided that such elements are identified in a clear and compressible manner. If a consumer thinks that he is protected if he does not read the terms Art. 34 ph 3 - verification of the unenforceability of terms Terms that reproduce legal provisions or that are reproductions of the legal provisions or implementations of principles contained in international conventions to which all imember states of the European union or the European Union trade are not unfair It seems obvious because without this rule you can claim that a legal provision is not true. Ex. German law says that if you purchase insurance coverage (health for example), in order to understand what the risk is they want to make a few tests, see what is your condition. Once you have entered the insurance contract, if you fail to provide some 30 di 39 relevant information, the insurance company wants to withdraw from the contract. A term that grants the company the possibility to withdraw from the contract in these cases cannot be unfair and they do not even have to write in big or lettuce client know about this term (that if they do not give him some relevant info the company can exit the contract), they just apply this legal provision and this term will never be unfair because a legal provision cannot be unfair. - Standard trade terms • Applied to all parties • Also contracts that have been drafted in advance (airline, insurance company), but in reference only standard trade terms • Formal check (double signature) —> if there are two check the terms are valid - Unfair terms • Applied exclusively contractual relationships between business and consumer. • Also contracts that have been unilaterally drafted in advance for individual use • Substantial check (scrutiny of the regulatory balance of the contract). Contingent conditions A conditon is an uncertain and future event, pn whose verification the beginning of the effects of the contract (condition precedent) r their ceasing (condition subsequent) depend. Ex. I will buy a piece of land, provided a municipal town plan stating that it is guidable is approved —> if the town plan is approved, the contract will be effective, otherwise put won’t Ex. … in the meantime the same lan has been leased to a third party dar a different use (for example, as a carpark), subject to the approval of the municipal town plan. — > if the municipal town plan is approved, the rental contract will no longer be effective. We have different type of conditions • Casual - be independent of the will of parties. For example: I will buy the land, if it is designed as buildable.. • Mixed - that depends both on external events and internal parties, I will buy a house if the bank grants me a loan, depends on me, on the other party who will sell me the house and to the bank, external. • Potestative - depeends on the will of one of the parties. For example I say that I will sell my shop to your son, provided I (decide to) retire by December 21. If I enter in a contract: I will sell you my house if I get out of bed with my left leg first, this agreement of a merely potestative condition precedent is void. It is void because … Art. 1354. Ph 1 - Illegal or impossible conditions A contract is void if it includes a condition precedent or subsequent that is contrary to binding laws. Public order or public morals. Ex. I’will say you 50.000 on condition that you become a supporter of my political party —> no way you can have this kind of contract Ex. I will give you my house on condition that you decide to marry Jenny —> nobody is under duty to enter marriage for under reason. 31 di 39 Both of these examples are contrary to public order because they violate inalienable personal freedom What happens if an impossible condition in inserted into a contract? (Consequences will happen based on an uncertain event). Ex. If martians lend on earth, I will give you my house (condition precedent) —> the contract is void because it makes no sense ti keep. Contract for an event that will never occur Ex. Ill give you my house; however, if the pizza del duomo is declared buildable, you will have to return it to me (condition subsequent) —> the contract is valid but it is like there is no condition because it will ever occur. Art. 1358 - behaviour of parties pending the event foreseen by the condition A person who is obliged or who has alienated a right under a condition precedent, or has acquired it under a condition subsequent, must, pending the event foreseen by the condition, act in good faith to maintain the integrity of the other party’s interests. Ex. Paul undertakes to purchase a piece of land on condition that he is granted a loan from Bank x, for some reason after Christmas he changed his mind, he is in a valid contract, but under the condition that the bank grants him a loan. Of course he cannot go to a friend of his in the bank and asks him to make sure that they will not grant him the loan, it would be acting against good faith. Ex. Paul purchases land from Bill, however Paul will have to return it if the city council declares the land buildable. Of course Paul hopes that he will not have to give back the land to Bill, but cannot in any occasion approach a friend of his in the city council and ask him not to approve the law that declares that type of land buildable. What is the fundamental principle on which the prohibition is based? Good faith! Objective in this case - Subjective —> psychological element so knowledge and non knowledge. I purchase something, but I do not know that the seller is not the owner —> I’m am in good faith - Objective —> fairness. • Fraud by omission for example so when I sell a car I must say that it was involved in a series accidents • Unfair terms in consumer contract, I take advantage knowing that the client will not read all the contract. • Constructive fulfillment Art 1359 - fulfillment of the condition The condition is considered fulfilled if it does not occur for a reason imputable to the party who had an interest contrary to that fulfillment What sense does it make to insert a condition in the contract? For example I rent an apartment in Paris for 6 months from 1/0, since my employer told me that I will be transferred there from 1/03/23. After having entered in the contract, 23/11/22 I learnt that I will be promoted and no longer will be transferred to Paris so I won’t need the apartment anymore. Am i entitled to terminate the rental agreement? I made a mistake —> if is essential and recognizable the contract can be voidable. But this it is not a recognizable mistake. The reason why I rent that apartment is because I had to come to Paris, only if I won’t get a promotion. The condition is a tool that will shape my will, it makes sure that I can ensure that the reasons why I enter a contract are relevant. 32 di 39 3. Objective —> charging 20.000€ you are objectively taking advantage of the situation Its actually two requirements because the second implies the third since the second says that you cannot take advantage. Ex. Same situation I go to pay 20.000€ a motorboat owner to go look for him without telling him that my friend is in a state of danger now. Here there is no awareness so the condition is still unfair (20.000€), but the contract remains valid. —> awareness of exploitation is necessary. Art. 1448 - general recission action for injury If there is a disproportion between the performance of one party and that of the other and such disproportion was the result of a state of need of one party, of which the other has availed himself for his advantage, the injured party may demand recission of the contract. The action is not admissible if the injury does mot exceed one-half of the value that the performance carried out or promise by the injuries party had at the time of the contract. Ex. Because of a pressing need for money, known to the Paul, bill sell to Paul his gold watch with 2.000 for 300. Art. 1450 cc - offer to modify the contract The contracting party against whom recission is demanded can avoid it by offering modification of the contract sufficient to restore it to an equitable basis. The judge will determine the amount so not only if the contract is valid or not, but can modify this contract so for example saying that the price of that watch is now of 1000€. In most of the cases you want to modify or annul a contract because you realized the price paying is not aligned with the market, I realize I made a bad deal. After one year you cannot seek for recission of the contract, it is a short period of time, that’s why - If there is a colpevole, negligent conduct (mistake) • The victim 5 years to seek annulment • No limitation on objecting the annulment of the contract by the other party - If we have a general recission of the contract so where there is an awareness of exploitation of a party we would think that the period of time that the victim has is longer than 5 years, but it is not, • The victim has 1 year only • There is 1 year of limitation of objecting the recission by the other party Thats because the legal system is concerned that regulation of recession could result in the juridical evaluation of the contract in reach of the principle of freedom of contract (contractual autonomy). Dissolution and recission of contract Both dissolution and recission are inherent in a disturbing element of the ‘exchange’ Dissolution —> anomaly in the function/performance of a contract so after have entering it Recission —> generic anomaly when entering the contract. 35 di 39 This is the reason why at law it is not correct o state that the contract has been rescinded (dissolved) because the tenderer did not hand over the job on time. —> art 1642 cc - clause restricting the raising of objections A clause with which it is established that one of the parties cannot raise objections with the result pf avoiding … the performance due does not have effect n the case of nullity, annulment or recission Law of succession Transferring property upon death Alternative device to wills? Is it possible to transfer property upon death through a binding contract? Under roman law, succession agreements by which the deceased instituted tue other party or a third party as an heir or promise to institute the other aorta or a third party as an heir were void! MANCA UN PEZZO SLIDE 1 LESSON 20 SLIDE 9 LESSON 22 According to Art. 458 CC - Prohibition of Succession Agreements All binding agreements by which a person disposes of his/her succession are void. Italian law prohibits any agreement that transfers rights or obligations to one or more persons upon the death of a person 70% of people in Italy did not draft a will so what happens? Intestate succession = succession on absence of a will Main problems for legislation: - determine who will succeed the deceased - Frovide for classes of heirs (groups f heirs who are called to inherit) 3 criteria: 1. Presumed intentions of the deceased, with no will what would he want? To leave to his relatives 2. Family solidarity: probably his family should get some of the properties. 3. To public policy/religion In Italy there are 3 categories of intestate (in the absence of a will) successors exist, based on the relationship with the deceased: s. descendants (persons in the blood line of the ancestor) t. parents, other ascendants and siblings u. other relatives up to the sixth degree (class) Each class excludes the following class and after the 6th degree is the state that inherits everything How does it work in practice? - the person that passes away has a spouse and a child • Spouse 50% • Child 50% - The person that passes away has a spouse and two children • Spouse 1/3 • Children 2/3 36 di 39 - The person that passes away has a spouse, no children, two parents • Spouse 1/3 • Parents 2/3 - The person that passes away has a spouse and two children • Spouse 2/3 • Collateral relatives 1/3 - … - Relatives up to 6th degree 1 - State 1 The drafting of a will A person has the freedom to determine the Destini of his assets (testamentary freedom) Art. 587 cc - Will A will is a revocable act by which one disposes, for the time when he will have ceased to live, of all or part of his assets. • A will does not has necessarily an economic nature (a different from the contract), in a will somebody can recognize an child, son or daughter. • It is a revocable act so at any time you can revoke it and rewrite it • The right to testate it is not considered renounceable in order to protect the testator from external influences Scope of testamentary freedom: important limitation to the freedom of gestation are related to the potential claims of the spouse/civil partner, the children or even other relatives of the testator. - Civil law • Idea that a person’s property in a certain way belongs to stye whole family • ‘Forced heirship’ in favor of certain family members - Common law • Starting point is unlimited freedom • Certain family members have a claim to a part of the estates Scope of testamentary freedom In the last two cases the person drafting the will can solely dispose of 25% of his assets The forced heirship will not inherit anything only in 2 cases: Art 463 cc - Cases of unworthiness 1. In case you try to kill the person 2. In case you tried to induce that person by fraud or duress to make, revoke or change his will. Scope of testamentary freedom 37 di 39