Private & Business Law Notes

8/4/2019 Private & Business Law Notes

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CIVIL LAW(Italian Private Law)

Italian Law in English

Talking about Italian law in English means to use the language of a different juridical system.

English law is different from Italian law:

Different sources of law,

Different partitions,

Different concepts,

Different rules

Examples: consideration, causa del contratto.

TRANSLATION PROBLEMS:Cases where translation is impossible.

Cases where it is apparently possible: contrattocontract.

Necessity of a comparative approach

Specific words in original language and explanation in English. For example: causa.

Diritto Oggettivo.

Diritto oggettivo is the law.

Law is a set of rules governing certain relations in a certain place.

Example: Italian labour law is the set of rules governing labour relations in Italy.

The traditional approach: law rule is settled by the authority and must be respected. If not, a judge

will condamn. Recent opinions: the lex mercatoria.

Private Law

Different from Public Law, Private law is considered as a set of rules governing relations where

parties are on the same level, with the same powers.

PRIVATE LAW PARTITION:civil law: family, property, contracts, torts.commercial law: commercial activities, societies, commercial contracts .Sources of Private Law in Italy

Civil Code and Related Statutes From statute articles to rules of law. Cases The role of judges and authors in Italy. Doctrine

The Structure of Civil Code.

Nearly 3.000 articles divided in 6 books concerning

Family (1)

Successions (2)

Property (3)

Obligations and contracts (4)

Commercial activities (5)

Protection of the rights (6)

RELATED STATUTES:Related statutes govern specific aspects of items considered in the code. The example of sale

contract: general sale in the civil code - International sale of goods in a statute.

PRIVATE LAW RELATION:A relation between certain parties giving them certain powers and obligations and having as object

certain things. We will study:- the actors- their position (powers and obligations)


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- the facts producing, modifying and destroying private law relationActors.In the world of private law we meet:

- natural people- collective beings like associations, committees, foundations and companies, made by two

or more people

Natural Person

Art. 1 cc: Legal capacity is acquired at birth. Legal capacity is the capacity to have rights and

obligations

Art. 2 cc: The age of majority is fixed at termination of the 18th year. On reaching majority one

acquires the capacity to perform all acts except those for which a different age is prescribed. When

a person becomes 18 years old, he can perform every act of private law if he is not mentally ill.

EMANCIPATION:Art. 84: The Tribunal can permit for serious reason the marriage of a person over 16 years old.

Art. 390: The minor is emancipated by operation of law on marriage.

Art. 392: The spouse is the curator of a minor married to a person of age. If both spouses areminors, curator will be a parent.

EMANCIPATION EFFECTS:The emancipated person can perform alone only acts of ordinary administration, in other words

those acts that do not vary his asset. To perform an act of extraordinary administration, like a sell,

he needs the assistance ad approving of the curator. Extraordinary administration acts performed by

an emancipated person without the curators approving are voidable.

INTERDICTION:Art. 414 cc: A person who has attained majority and who is in condition of habitual infirmity that

makes him not able to look after his interests, shall be interdicted. Interdiction cancels the capacity

to perform every act of private law.

Interdiction is given by a judge sentence. The judge also indicates a tutor. The proceeding can beinstituted by a parent or by the public attorney. A tutor will administer the assets of the interdicted

person. Acts performed by an interdicted person are voidable.

DISABILITY:Art. 415: A person who has attained majority and who is mentally infirm, whose condition is not so

serious as to justify interdiction, can be declared disabled.

The same measure can be taken towards a person who, through prodigality or abuse of alcoholic

beverages or drugs, exposes himself or his family to serious financial prejudice.

Disability is given by a judge sentence. The judge also indicates the curator. The proceeding can be

instituted by a parent or by the public attorney. The disabled person can perform alone only acts of

ordinary administration, in other words those acts that do not vary his assets. To perform an act of

extraordinary administration, like a sell, he needs the assistance ad approving of the curator.

Extraordinary administration acts performed by an disabled person without the curators approving

are voidable.

NATURAL INCAPACITY:Art. 428: An act performed by a person who, although not interdicted, is proved to have been for

any reason, even contingent, not able to understand or intend at the time the act was performed, can

be voided on request of such person, if such act produces serious prejudice to the performer.

COMMON PROBLEMS:Every collective being has:

Governance (who and how can govern it)

Representation (who can validly speak for it)Autonomy (how long it is a different being from its members from a patrimonial point of view)


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Associazione.

Associazione is a collective being with no profit purposes: to amuse, to increase culture, to make

sport, etc. It is based upon a contract, called foundation act, which contain the name of the

institution, description of its purposes, its assets, legal address, rules concerning its organization and

management

FOUNDING ACT:

Association is based upon a contract, called founding act, which contains: the name of the institution the description of its purposes, its assets, Its legal address, rules concerning its organization and management Rights and obligations of members Criteria of their admission Rules about dissolution and disposition of its assets

MEETING OF MEMBERS:

it is called at least once a year by the administrators. Resolution are adopted by a majority of voteswith the presence of at least one-half of the members. It approves the balance sheet. It approves

association contract modification.

BOARD OF ADMINISTRATORS:They are selected by the meeting of members, They govern the life of association, They make the

project of balance sheet. One or more admnistrators has the power of representation

Comitato.

Composed by a group of people. It has the purpose to collect money for a public utility end.

Personalit Giuridica

Associazione and Comitato can ask to have the personalit giuridicaP.A. Gives personalit giuridica that makes the being the only subject liable for its obligations with

third parties.

LACKING OF PERSONALIT GIURIDICA:Art. 38: Third people can enforce their rights against the common assets of the association for

obligations undertaken by the person representing it. People who have acted in the name and for the

account of the association are also personally liable in solido for such obligations.

Art. 41: If the comitato has not the personalit giuridica, its members are personally liable in solido

for the obligations undertaken.

Foundation (Fondazione)

Assets given or left for a certain purpose. A board of administrators govern it. (i.e. Borse di studio).

Governed situations.

Rights.(diritto) is a situation which gives the owner some faculties. We distinguish:

Diritti assoluti (personal rights, rights on a thing). They can be opposed to everybody. (i.e.ownership. If Im an owner of a thing I'm the only one I can use the thing and oppose everybody my

right)

Personality rights. Physical integrity (It's not possible to make a contract having as an object physical

integrity). Name (I'm the only one to be allowed to use my name) Person's likeness (I have the right to use as I want my personal likeness. In a case a

political party use a person's likeness without his permission, maybe the person is not


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of the same political ideas and can ask to remove the advertise)

Privacy (Right of keep for himself his personal data)Violation consequences: damages repair.

Diritti RealiAbsolute rights related to things

Immovable (Land, sources, rivers, buildings)

MovableFruits (i.e. Interests on a sum of money)

OWNERSHIP. (diritto di propriet)

The Owner has the right to enjoy and dispose of things fully and exclusively, within the limits and

with the observance of the duties established by the legal order.

Enjoy means faculty of using and of becoming the owner of the fruits (naturalm things produced by

the principal thing, and civilian, the compensation for the using by another person, the interest).

Disposing means selling or making a gift.

PROPERTY LIMITATION.

The owner cannot perform acts that have no other purpose than that of harming or causing

annoyance to others. Object of a property right can be a moveable or an immoveable good.

The largest part of rules about property are established for property of immoveable. A veryimportant aspect is the faculty of building.

Other Diritti Reali Usufrutto: The right to use, during a certain period of time: the usufruttario can not

change the economic destination of the thing (uso and abitazione). (i.e. a man is the

owner of the house and lives with his wife and son. It is possible that the man says in

the testament that the usufrutto of the house goes to the wife, and the naked

property/nuda prorpriet to the son. So after his death the wife can go living in the

house, than when she dies the son becomes the owner of the house).

Servit prediale: a burden imposed on land for the utility of other land belonging to adifferent owner, like a passing servit. Servit can be imposed. We speak about

FONDO SERVENTE (The land where the other person makes something. i.e.Passing), FONDO DOMINANTE (The land whose owner can make something on

the other land. i.e. Allow passing). The Servit follows the land.

Superficie: right to build and maintain a building whose owner becomes the subjecthaving the right of superficie.

Enfiteusi: it concerns land and gives to the tenant the same right to exploit as hewould be the owner. The tenant has the obligation to improve the land and to pay the

granter a periodic rent. After the period of Enfiteusi the tenant can become the full

owner of the land.

Usocapione: To have uso capione it is necessary that a person uses the thing as itwould be the Owner (that is called possessor). After 20 years he becomes full owner.

If I use as Usufruttario I become Usufruttario.

Diritti relativi(or di credito). They can be opposed only to the debtor (only one person).The party who has the obligation to perform is called debtor. The owner of the relative right can

ask only the debtor.

Obligation.(Obbligazione) A relation between two parties on the basis which one of them called creditor, has

the right to pretend from the other one, called debtor, a certain conduct.

Conduct must be economic valuable but it can also correspond to a non patrimonial creditor's

interest. It can be to give a thing or sum of money, to make a service, not to do something, to leave

that another person uses a thing belonging to the debtor.Marriage is not a contract because it doesn't make any obligation. We have obbligazione only when

the conduct of the debtor can be translated in a sum of money.


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SOURCES OF OBLIGATIONS:

Art. 1173: Obligations arise from contracts, torts, or any other acts or facts which are able to

produce obligation under the fucking law. (i.e. NEGOTIOURM GESTIUM aka quando se spacca er

tubo der vicino e te chiami er idrauligo ma paga lo stronzo)

PERFORMANCE OF OBLIGATIONS:

The code establishes rules about the performance of obligations saying who, when where and how.

Rules applicable only if there is not a different will of the parties. WHO: Conforming the general rule, obligation must be fulfilled by the debtort but...

(art. 1180) the obligation can be performed by a third person, even against the will of

the creditor if the latter ha so interest in having the debtor perform the obligations

personally. However, the creditor can refuse the performance offered by a third

person, if the debtor has communicated to him his objection.

WHERE: Performing place depends on obligation object. Obligation to delivercertain thing must be performed in the place where the thing was when obligation

arose. Obligations to pay a sum of money shall be performed at creditor's domicile.

Other obligations shall be performed at debtor's domicile.t

WHEN: (art. 1183) If the time for performance is not specified, the creditor candemand it immediately.

HOW: (Art. 1176) In performing the obligation the debtor shall observe the diligenceof a good family father. If he is a professional, diligence shall be evaluated with

respect to the nature of that activity.

TO WHOM: The payment must be made to the creditor or to his representative or tothe person indicated by the creditor or with the permission of the law or the count to

receive it.

(art. 1189) The debtor who makes payment to a person who, on the basis of

unequivocal circumstances, seems entitled to receive it, is discharged if he proves

that he was in good faith. The person who has received payment is required to restore

it to the true creditor.

PAYMENT: Who owes several debts, can say when he pay which debt he want tosatisfy. He cannot pay first the principal. He has to pay first interests

NON PERFORMANCE: (art. 1218): Debtor who does not exactly render dueperformance is liable for damages unless he proves that the non performance or delay

was due to impossibility of performance for a cause not imputable to him. Creditor

has not the obligation to receive the performance and to give his Ncollaborations. If

he does not, the code establishes rules permitting the debtor to make himself free. He

will also pay debtor's expenses for the safeguard of the thing.

OBLIGATION DI MEZZI E DI RISULTATO:

Art. 1176Art. 1218.

In performing the obligation the debtor shall observe the diligence of a good family father. If he is a

professional, diligence shall be evaluated with respect to the nature of that activity (obbligazioni di

mezzi).

Debtor who does not exactly render due performance is liable for damages unless he proves that the

non performance or delay was due to impossibility of performance for a cause not imputable to him,

DAMAGES: Art. 1223. The measure of damages arising from non performance or delay shall

include the loss sustained by the creditor and the lost profits insofar as they are a direct and

immediate consequence of the non performance or delay. (danno emergente, lucro cessante).

CREDITOR'S NEGLIGENCE: art. 1227: If the creditor's negligence has contributed to cause the

damage the compensation is reduced according to the seriousness of the negligence and the extend

of the consequences arising from it. Compensation is not due for damages that creditor could have

avoided by using ordinary diligence.

EXONERATION TERMS: Art. 1229: Any agreement which in advance, excludes or limits the


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liability of the debtor for fraud, malice or gross negligence is void. (dolo, grave negligenza, piccola

(secondo Virginia) , lieve negligenza).

OTHER WAYS OF EXTISINGUISH OBLIGATIONS:

Not satisfying: Novazione, Remissione, Compensazione

Satisfying: Confusione; Impossibilit.

Novazione: Substitution of a new obligation to the old one having differentobject or a different source for the old one. Privileges, pledges, mortgages of the oldobligations are extinguished if the parties do not expressly agree to preserve them for

the new obligation. i.e. Restitution plan = Piano di rientro (first the client has an

obligation called MUTUO then esticazzi).

Remissione: Art. 1236. The declaration of the creditor remitting the debtextinguishes the obligation when it is communicated to the debtor, unless the latter

declares within a responsible time that he does not wish to profit of it.

Art. 1237: Voluntary restitution by the creditor to the debtor, of the original

instrument representing the claim is evidence of remissione.

Compensazione: When two people are obliged to each other, both debts areextinguished to the extent of their corresponding amounts. Debts must have as object

a sum of money or a quantity of fungible things of the same kind and must beliquidated and collectable. If they are not liquidated but it is possible to do an easy

prompt liquidation, the compensation can be declared by the judge.

Satisfying:

Confusione: art. 1253 When the debtor and creditor become the same personthe obligation dies.

Impossibilit: Obligation dies when its performance becomes impossible forreason not due to the debtor.

Changes of obligation parties: Surrogazione, Assignment, Delegazione, Espromissione, Accollo.

Changes of obligation parties (change in creditor).SURROGAZIONE.When there is the substitution of a person who pays at the place of the debtor.

Surrogazione can be made:

1. By Creditor, receiving the money2. By debtor, when he borrows money for payment.3. By operation of the law and it is the case of a debtor who is bound with others for others.ASSIGNMENT.

Creditor can assign his claim, freely o against compensation, even without debtor's consent, except

if the claim is a personal one or its transfer is forbidden by law.

The law transfer is effective respect to the debtor if he has accepted it or if he has been notified of it

(Cessione del credito).

Changes of obligation parties (change in debtor).DELEGAZIONE.

Delegazione: Debtor assigns to the creditor a new debtor who binds himself to the creditor.The original debtor is not discharged, unless the creditor says expressly that he discharges him.

Delegazione di pagamento: Debtor delegates a third person to make payment:SolidarietSussidiarietBeneficio di preventiva escussione.The relation between the bank (usually the third person) and the debtor is called Rapporto di

provvista . If there's delegazione only if the creditor expressly says i discharge the old debtor, the

old debtor is discharged. If this not happens delegazione implies two debtors: the old debtor, the

third person (usually the bank). The two debtors are liable in solido.

The creditor can ask both the payment (solidariet): first to the new debtor (sussidiariet), and if herefuses he can ask the old debtor. It is not enough the new debtor says to refuse, the creditor mustalso try to go on with an execution (legal proceeding in order to obtain a condemn for the new


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debtor), and only if the legal proceeding says the new debtor cannot pay, he can move on to the old

debtor.

ESPROMISSIONE.

When a third person assumes the obligation toward the creditor. He's bound in solido with the

original debtor, unless the creditor expressly releases the latter. The third person acts because he's

generous (ie. The father and the debtor of the son), and he has an agreement with the creditor. Here

again the creditor must speak in order to discharge the fucking original debtor.ACCOLLO.

Art. 1273. If the debtor and a third person agree that the latter shall assume the debt of the former,

the creditor can adhere to the agreement, making the stipulation. The adhesion of the creditor

imports the releases of the original debtor only if this constitutes an express condition of the

stipulation or if the creditor expressly releases him.

If the debtor is not released, he remains bound in solido with the third person.

Judges extend also to espromissione and accollo cumulative the rule established for delegazione:

the old debtor's liability becomes sussidiaria, in other words creditor must ask for the payment first

to the new debtor and only if this one answers no.

In delegazione the agreement is before (rapporto di provvista), here the agreement is between the

debtor and the third person, and the creditor is out of the agreement but can adhere to it.The adhesion of the creditor produces the freedom of the original debtor only if the creditor

expressly releases him.

SPECIFIC KINDS OF OBLIGATIONS:Obbligazioni pecuniarie: Whose object of the payment is a certain sum of money (i.e. obligation to

pay a price), The sum does not change even if time passes and the buying power of money

(inflation) goes down. This is why we found Contractual term of defense (in order to modify the

sum of money).

Obbligazioni alternative: Where debtor performs obligation choosing between more conducts.

Obbligazioni solidali e parziale: Obligation can have:

One creditor and more debtor; solidariet (obbligazione solidale) means that creditor can ask allpayment to a debtor; if he pay, he has the right to be refunded by the others.

When there are more debtors, solidariet is the applicable rule if the parties do not expressly agree

othrewise. More creditors and one debtor: in this case the rule is parziariet (obbligazione

parziaria), in other words every creditor can ask to the debtor only the payment if his part. When

there are more creditors, parziariet is the applicable rule if the parties do not expressly agree

otherwise. The purpose of the rule is that the legislator wants to protect the creditor. The creditor is

only one and protected because the risk of non performance is on the many debtors.

Possesso.

The most relevant situation of fact ruled by the law.

Art. 1140. Possesso is the power over a thing that is shown by an activity corresponding to the

exercise of ownership or other real right.

Possesso needs two elements: power on the thing and animus possidendi, in other words the

intention to conduct himself as the person who has the ownership or other diritto reale (i.e. the

robber, ladro, it's the possessor but not the owner).

Eventually we have two elements: The power on the thing (objective) and the animus possidendi

(subjective). It's different from detenzione (where we don't have animus possidendi).

Protection.

Art. 1168. One who has been violently or by stealth deprived of possesso can, within a year of the

loss, sue the taker for recovery of possessor.

Art. 1170: One who has been disturbed in possesso of immobile can, within a year of thedisturbance, sue for protection of possesso..

Possessore looses against owner, the latter must sue the first. During the proceeding about possesso


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is not possible to discuss about property, except if it is urgent.

(i.e. The owner of a land makes a wall, the neighbour sue the owner saying he has servit. The

judge can sue the other person saying you have not the right to pass. Then the judge verify the

person has the right to pass. FIRST the judge verify the situation of possesso, THEN the situation of

ownership. Not together. During the proceeding it's possible to discuss about the property only if it's

urgent possesso is guaranteed).

Consequences of possesso.Art. 1158: The ownership of a thing or other diritti reali in it are acquired by virtue of possesso

continued for 20 years. This kind of transfer the property is called USOCAPIONE. We have

possesso when I conduct myself as the owner.

Art. 1144; Acts performed at the toleration of another cannot serve as the basis of his possesso.

(i.e. If I buy a house I become the owner and the possessore. The seller until the moment he delivers

the house he's the possessore. To achieve the period of 20 years I can add my possesso to the

possesso to the person who sold me the house).

The way of acquiring property.

Starting with the argument of civil acts, it must be on observed that the civil code mentions many

ways to acquire property.

Jurists distinguish way by original title (a titolo originario) from ways where the acquisition dpendson the old owner (a titolo derivativo).

In First class, beside usucapione we find accessione. Accessione is the union of something to an

immobile. For example a house.

The general rule says that owner of the land becames also owner of the thing on it. In the second we

will put contratti and testamento.

Under a certain aspects the two ways differs a lot. If the thing has burdens and I became the owner

at titolo originario. I acquire the full property, without limitations. If I buy it from the precedent

owner, as nemo protest transfererre quod non habet, my ownership will be so limited as the old

owner's right.

(i.e. If another person build an house on my land, or I give him the superficie or the owner of the

land (by accessione) becomes also the owner of the house. If a person plants trees in my land, Ibecome the owner of the trees, after paying for them).

Definition of Contratto

art. 1321. Contratto is the agreement of two or more parties to establish, regulate or extinguish an

economic legal relationship among them.

Contract=Italian contract =/= English Contract

(i.e. when I call a thing I call it using the name of the most important part of it sineddoche)

Autonomia Contrattuale.

Art. 1322. The parties can freely determine the contents of their contracts within the limits imposed

by law. The parties can also make contratti that are not of regulated kinds, provided that they are

directed to realize interests worthy of protection according to the legal order. (i.e. I have an house

and not using it, I need money and I can sell the house. If I don't need immediately a big amount of

money and I want to be the owner of the house, I can give to someone the possibility to use the

house contratto di locazione).

Contract is the mean by which the parties can establish the relationships between them observing

limits imposed by the law. (It is the same in every legal system of western countries).

Freedom of Contract.

Contratto is a mean of self determination. Freedom to make contract or not. Freedom to choose

other party. Limits: the cases of monopolistia legale & di fatto.

Freedom of contract is freedom to choose a specifically ruled contratto or a not specifically ruled

contratto. Freedom to choose different contents from rules established by the code, in other wordsthe most party of rules about contratto are not mandatory.Code Geography


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General Rules (art. 1321-1469)

Specifically ruled contratti (art. 1470-1986)

Related statutes (Wien convention)

Contratto between professional and consumer:

Consumer code:

- Solve et repete- Inademplendi non est ademplendum (even if the stronger party does not perform the weaker

party must perform. And if has something to say must go in the court and condemn the stronger

party

Contratto between professionals:

Art. 1229: Art. 9 legge subfornitura. Decreto 231/00

Elements of contratto.

Elements of contratto are:

Agreement of the parties Causa Object Form when the law imposes it establishing that contratto is void if the form lacks.Fundamental elements: their lackness produces voidness of contratto.

Agreement.

Art. 1326: Contratto is concluded at the moment when who made the offer has knowledge of the

acceptance of the other party. Agreement is the metting of two will manifestations: offer and

Acceptance.

Offer.Definition: offer is a will manifestation showing author's intention to consider himself bound in case

of acceptance by the other party. Invitation to offer.

Form of the offer.The general rule: freedom of form. And the exceptions: when a particular form is required.

Offer revocation.

An offer can be revoked until the contratto is concluded. If the offer has bound himself to keep the

offer open for a certain time, the revocation has not effect.

Acceptance.Definition: the rule of conformity: acceptance must be conform to offer. If not, it is a offer refusal

and a new offer.

Form of Acceptance.

General Rule Exceptions Written formConventional form: when the offeror requires a specific form of acceptance, this one is not valid if

it has not the required form.

Revocation of Acceptance

The acceptance can be revoked if the revocation comes to the knowledge of the offeror before the

acceptanceThe problem.To be effective offer, acceptance and revocation must be communicated by one party to the other.

Does it mean that the communication must be really known by the subject to whom it has beenaddressed or it is enough that the communication becomes available for him?

Presumption of knowledge.


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Art. 1335: Offer, acceptance, their revocation and any other declaration directed to a given person,

are deemed to be known at the moment they reach the address of the person to whom they are

directed, unless he proves that, without his fault, it was impossible for him to have notice of them.

CausaCausa in the code: it must exists and be conform to law. Causa is unlawful when contratto is the

mean to escape from the application of a mandatory rules.The problem of promises enforcement.

Consideration or if it is a gift, deed or act under seal. Charitable subscription.

If there's not consideration (=gift) It is necessary that the party who give the gift takes the

obbligation. (IN UK)

Definition of Causa.

Causa as the reason of promise enforcement: Exchange economic interest Public utility Guarantee purpose Family interestIn ENGLAND:

Promise is valid if it is contract. Promise is contract if it has consideration Gift has no consideration them it is not contract then is valid only if had deed form.In ITALY:

Donation is contratto Contratto is valid if it has a causa Causa donandi requires atto pubblicoIn England and in Italy free promises require something more to be valid than exchange promise (in

England deed, in Italy atto pubblico). Gift have no consideration.

(i.e. I won a lottery and want to give half the winning prize to a person, then I change my idea. Inorder to avoid the emotional promise the contract is not valid if there's only agreement and not the

other elements causes of the contract)

ObjectObject is the contain of contratto and then the performance of parties.

Art. 1346: The object of contratto must be possible, determined or determinable. The object of

contratto can be determined by a third person.

Form.Possible forms:

the general rule: freedom of form. Particular from requested for the validity of the act:

Suretyshipfideiussione (express manifestation of intention to became guarantor).

Immoveable sales

Written form kinds:

Scrittura privata autenticata Atto pubblico Scrittura privataLaw requires the intervention of notaio for the making of certain written acts who must be

registered in public offices (like for example land sales).

Form requested for the proof of act:

Verba volunt scripta manent.The code requires written document to prove the existence of contratto in proceeding it its value in

more than 2,50.


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Effects of Contratto

Every contratto produces obbligazioni.

- Effetti obbligatori

- preliminary contratto

Some contratti produces transfer of rights (see after)

The Transfer Problem.There are several solutions: Roman Solution, French Solution and the Actual German Solution.

The Italian Solution.

Art. 1376: In contratti having as object the transfer of ownership or other right, the right is

transferred when the parties agrees.

EXCEPTIONS:Sale of a generic thing.

Sale of a future thing.

Sale of a thing that is not of the seller.

Subjects bound by the Contratto.Parties are bound

Art. 1388: A contratto made by a representative in the name and in the interest of the principal,

within the limits of the powers conferred on the representative, produces effects directly as to the

principal. Power to act as representative is given by law or by the subject who want to be

represented with procura (power of attorney). Procura must have the same form of the contratto that

representative will conclude

Invalidity Of Contratto.Nullit (voidness) if a fundamental elements lacks or contratto goes contrary a mandatory rule.Annullabilit(voidability) if one partys will is defective .

Nullit:

No effects. Everybody who has interest can ask for declaration. No prescription, no validation

(except few cases) but conversion.

Art. 1424: A void contratto can produce the effects of a different contratto, of which it has the

requisites of substance and of form, whenever, considering the objective sought by the parties, it

must be deemed that they would have wished it if they had known of the voidness.

Annullabilit:

Effects until declaration of voidness then no effects. Only the protected subject can act for

declaration, Prescription of 5 years, Possibility of validation.

Art.1444: The party who can act for annullamento can make the contratto valid expressly. Contratto

is also made valid if this party, knowing that is not valid, voluntary performs it.

Causes of Annulabilit:

Art. 1427: A party whose assens was given by errore (mistake), extorted by violenza (duress) or

obtained by fraud, can ask for annullamento of contratto.

ERRORE:Errore is relevant if it is essential and it could be known by the other party. Essential means that it

has pushed the victim to conclude a contratto. If it had not been, that party should not have

concluded the contratto. It is recognizable if it would have been discovered by a person of normal

diligence.VIOLENZA:Art. 1434: Violenza is cause for annullamento of a contratto even if made by a third person


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Art. 1435: Violenza must be of such a nature as to impress a reasonable person and to cause him to

fear that he or his property will be exposed to an unjust and considerable injury. In this respect, the

age, sex and condition of the person shall be considered.

DOLO (Fraud):Art. 1439: Fraud is cause for the annullamento of the contratto when the deception employed by

one of the parties was such that, without it, the other would not have entered into the contratto.

RESCISSIONE:Art. 1447: A contratto by which one party takes obbligazioni under unfair conditions because of thenecessity, known to the other party, of saving himself or others from a present danger of serious

personal injury, can be rescisso on demand of the party who takes such obbligazioni.

Art. 1448: 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 can demand rescissione of the contratto. The lesione

must exceed one-half of the value that the performance made or promised by the injured party had

at the time of the contratto.

REGULATION:Time prescription of one year. Possibility of rettifica.

Art. 1450: The party against whom the rescissione is demanded can avoid it by offering amodification of the contratto sufficient to restore it to an equitable basis. Impossibility of making

the contratto valid.

Risoluzione of Contratto.

Risoluzione means cancellation of the relation created by contratto.

Risoluzione cancels obbligazioni produced by contratto.

Parties do have to perform and they can have back what they have given on the basis of contratto.

Cases of Risoluzione are:

Impossibility of performance. Hardship. Non performance due to debtors negligence or intention.

Hardship.

Art. 1467: If extraordinary and unforeseeable events make the performance of one party excessively

harder, the party who owes such performance can ask for the risoluzione of contratto.

The other party can avoid risoluzione if he offers to modify equitably the conditions of the

contratto. (I.e: Hardship clauses in international trade)

Guilty non performance.

The creditore can ask for performance or for risoluzione.

Art. 1455: Risoluzione is possible only if the non performance is serious

Non performance is serious when if had the creditore known about it at the moment of conclusion

of the contratto, he would not have concluded the agreement.

Ways to reach Risoluzione.Risoluzione giudiziale: The creditore can act in the Tribunale asking for it

Diffida ad adempiere: The creditore can send to the debitore a written request, asking for

performance within an appropriate time and declaring that if the performance will not take place in

that time,contratto will be considered risolto.

Clausola risolutiva espressa.

Art. 1456. Parties can expressly agree that contratto will be risolto if a specified obbligazione is not

performed in the right manner.

In this case, risoluzione takes place by operation of law when the interested party declares to theother that he intends to use the clause of risoluzione.

In USA/UK and Anglo-Saxon areas they have punitive/exemplary damages. Judges can ask to


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pay a sum of money not in order to repair produced damages but in order to punish them. We don't

have that because of the different legal system thinking that only the damage must be repaired.

Other two rules about penalty clause.

Art. 1383: Creditore cannot demand both performance and penalty, unless penalty was estblished

for mere delay.

Art. 1384: Penalty can be equitably reduced by the court, if the principal obbligazione has been

partly performed or if the penalty is manifestly excessive.

Atto Illecito.

Art. 2043: Any fraudolent, malicious or negligent act that produces an unjustified injury to another

obliges the person who has committed the act to pay damages.

(In Anglo-Saxon areas they speak about torts because they have many of them.)

Elements of torst: Intentional or negligent conduct Unlawful damage Close relation between damage and conduct.Exceptions

Self Defense (If the damage is similar or less to the one the other person provoked to me)State of necessity (If I try to avoid a person crashing the window of a shop)

Lackness of capacity (minor)

Liability of another's act.

Art. 2049: Masters and employers are liable for the damage caused by an unlawful act of their

servants and employees in the exercise of the functions to which they are assigned.

The same rule: liability of parents, guardians, teachers and masters of art (proof of being unable to

prevent the act).

Objective liability.

Art. 2050: Who causes injury to another in the performance of an activity dangerous by its nature orby reason of the tools employed is liable for damages unless he proves that he has taken all suitable

measures to avoid the injury.

The same rule: damage caused by animals, things in custody (proof of foruituous event), collpase of

building (proof of defect in construction or maintenance).

[i.e. Car Circulation: Art. 2054: The driver of a car is liable for the damages caused to people or

property by circulation of the vehicle unless he proves that he did all possible to avoid the damages.

In the case of car accident, it is presumed until proof of the contrary is given, that each driver

caused the damaged suffered by each car.

The car owner is liable in solido with the driver, unless he proves that the car was in circulation

against his will.]

Marriage.Marriage as act and as a legal relationship.

Kinds of marriage:

Religioso Civile ConcordatarioMarriage effects.

Legal relationship in which wife and husband are placed in the same position. No one has a stronger

power on the other.

Rights and Duties: Trough marriage husband and wife acquire the same rights and assume the sameduties. A mutual obbligazione to loyalty, moral and material support, cooperation in the interest of

the family and cohabitation derives from the marriage. Both spouses ares bound, each in relation to


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his own assets and his own ability for professional or household work, to contribute to the needs of

the family.

Pattern of family.

The spuoses agrede between them on the pattern of life and fix the residence of the family

according to the requirements of both and the superior. *

Duties to the children.

Marriage imposes on both spouses the obbligazione to maintain, educate and instruct children,taking into account their ability.

Separazione.

If the spouses do not agree, the law establishes the remedy of separazione legale. Violation of

marriage duties produces addebito. After 3 years of separazione, spouses can ask for divorce.

Divorce cancels civil marriage not religious one.

Patrimonial Regime.

Spouses can choose between two kinds:

- Separazione dei beni (Every spouse is the only owner of the things he had before marriage and the

things that he acquires during the marriage. If they choose this one and during the marriage one of

the two buys a house, he becomes the only owner in this case.)

- Comunione legale dei beni. (Every spouse is only owner of the things he had before marriage,things that he acquires by gift or by succession, things of personal or professional using, things he

acquires as a compensation for damages suffered by him, things he acquires with the price if

transfer for the mentioned things). Things in common: Things acquired during marriage (only if

they are present when comunione is cancelled), fruits of belonging exclusively to one spouse if they

are present when comunione is cancelled, Income from spouses activities, Firms formed after

marriage and managed by both spouses; if azienda belongs to one spouse but it has been managed

by both of them, incomes are in common.

If they don't choose at the moment of the marriage, comunione is applicable. They can change the

choose regime, but it's necessary an atto pubblico.

Inheritance SuccessionProblem of destination of assets of a natural after his death. By testament a natural person can

dispose of his assets for the time after his death (successione testamentaria). If testament lacks, the

law establishes who they are (successione legittima).

Successione testamentaria.

Testament is a voluntary act. It Must be in writing and signed. It could be made by the person

(testamente olografo) or with the help notaio (testamento pubblico).

The person can choose freely heirs but a part of the assets (from a quarter to half) must go to certain

relatives (spouse, sons; legittimari and legittima). Testament can appoints theirs (who receives a part

of assets) and establishes legacy (the attribution of a certain thing). Legacy must not be accepted.

Acceptance.

A person who is called to an inheritance as heir must accept.

There are two kinds of acceptance:

- With beneficio d'inventarioin this case heir is liable of inheritance debts only to the extent of

inheritance assets;

- Without beneficio d'inventarioIn this case heir is liable of inheritance debts beyond inheritance

assets and if this one is not sufficient, he must pay them with his money. Legacy shall not be

accepted because the related debts are limited to the extent of the value of legacy.

(common when the debts are bigger than assets, and the heir is the husband that wants to safeguard

the memory of his husband). In the case of a minor the acceptance by the parents must be always

acceptance with beneficio d'inventario.

Separation.


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If the inheritance assets are rich and heir has a lot of personal debts, inheritance creditors can ask

for separation. If they do, they are preferred to heir creditors qand can satisfy themselves on

inheritance assets with priority.

I.e. a person during his life bought a house but with money of a bank. If the person at the moment of

death has not refunded all the debts the creditor (bank) can ask for separation and obtain the house,

sell it and have the money back. If there are extra money they go to the heir. Without separation the

bank might have nothing.

BUSINESS LAW.(Commercial Law)

The Magical figure of the Entrepreneur.An entrepreneur is the person who professionally carries out an organized economic activity to the

purpose of producing or exchanging goods or services.

1. Professionality. Means the habituality in carrying out the entrepreneurial activity.Consequently, someone who carries out this activity just occasionally cannot be qualified as an

entrepreneur.2. Economic Nature. Directed at obtaining a profit, i.e. a surplus of profits compared withlosses. Equalling profits and losses can be qualified as an entrepreneur as well (this is the case of

the public entrepreneur). A person coordinating a no-profit enterprise is not an entrepreneur.

3. Organization. In order to be qualified as an entrepreneur one needs to coordinate somebodyelse's capital and/or labour. I.e. a shopkeeper has not subordinated worker but he's an entrepreneur.

4. Market Orientation. In order to be an entrepreneur, one must orient the results of his activitytowards the market. Even if the activity is a complex one, a person is not an entrepreneur if he has

not private purposes. (i.e. it's not an entrepreneur a person that builds a house for himself. If the

house is built in order to have his shop inside of it, the person is considered an entrepreneur).

The small Entrepreneur.

Art. 2083: Direct farmers, craftsmen and small tradesmen are small entrepreneurs. Whoever

carries out an organized professional activity mainly by his own labour and the labour of his

familiar is in any case a small entrepreneur.

Small entrepreneurs are subjected to specific rules (normally if the economic activity goes wrong

and they make many debts without possibility to pay that, bankruptcy is not applicable).

The definition of small entrepreneur arises a problem: we find this definition in the civil code but a

particular act of 1985 gives another definition of craftsmen: Someone who, according to the sector

of his activity, has up to 40 subordinates can be considered a craftsman.

The prevailing opinion is that this definition of a craftsman only applies to the benefits accorded tocraftsmen above this act.

Judges say that one is the definition of the civil code, and another different thing is the definition of

the statute. This is only a definition whose aim is to choose entrepreneurs having the right to obtain

the benefits accorded to craftsmen. This because Italian law tends to give craftsmen benefits (i.e. in

case of mortgages at less interests than normal The definition of small entrepreneur for other

purposes is given by the civil code. We cannot use the statute definition in order to obtain the

application of other rules further than the provision of the act of 1985.

The Agricultural entrepreneur.

Art. 2135 says: an agricultural entrepreneur is someone carrying out one of the following

activities: Farming Forestry


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Animal Raising Activities connected with those mentioned above.Also the agricultural entrepreneur when does not pay debts is not subjected to bankrupt.

The agricultural entrepreneur is a person developing his activity using biological cycle (animal b.

cycle or vegetable b. cycle). It's an agricultural entrepreneur also a person who raises animals in

houses, in condition of intensive raising. Even the fisherman is an agricultural entrepreneur.

We have not an agricultural entrepreneur when a person uses person/vegetables without usingbiological cycles. i.e. If I buy and sell pets (or cows) without raising them, I'm not considered an

agricultural entrepreneur. I'm a seller of animals.

We've this kinds of entrepreneur even if the person carries out this activities and activities

connected to this. i.e. If I have a restaurant and I'm also a farmer using my own products I'm an

agricultural entrepreneur. (or a producer of wine and selling it). Even if I produce only the 20% of

my products I'm an agricultural entrepreneur.

Connected Activities must be fulfilled:

1. Said activities must be carried out by the same entrepreneur who carries out a main activity(subjective connection);

2. The activities must primarily assets products obtained through a main agricultural activity(objective connection);

The Commercial Entrepreneur.

Art. 2195 identifies 5 kinds of commercial activities:

1. Industrial activity directed at the production of goods and services;2. Intermediary activity in the circulation of goods (all trading activities belong to this group).A person using trucks is a commercial entrepreneur, if this carries out professional activities

(general def.).

3. Transport activity by land, water and air; Auxiliary activities, i.e. an agent for a car produceris considered a commercial entrepreneur. (agent: in English law is a person who acts for another

person making contracts. In Italy mandatario is the person who is appointed, agent is the so called

rappresentante di commercio and makes promotion and advertising for the producer. In generalterm agents is the person who makes contracts in the interest of another person, for example selling

cars of the producers. If the agent is the agent of an agricultural entrepreneur, he's also an

agricultural entrepreneur).

4. banking or insurance activity;5. activities which are auxiliary to the above;Special Rules.Legal system establishes special rules for the entrepreneurs concerning:

Legal publications Book keeping entries Rules on representation Bankruptcy procedures

Registro delle imprese. Sezione speciale: piccolo imprenditoreinformative effectiveness for third parties. Theseare the small entrepreneur. Registration in special section produces INFORMATION AND

PUBLICATION EFFECTS. We find here small commercial enterprises and non commercial

enterprises (agricultural one).

Sezione ordinaria: othersdeclaratory effectiveness. We found here big commercialenterprises. Registration in ordinary section produces DECLARATORY EFFECTS and in some

cases COSTITUENT EFFECTS. These are opposable to third parties. These means that an elementin this section is considered not known by third parties unless it's proved that third parties had

knowledge of it.


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These sezioni are collected by Chambers of Commerce, where there is the registry of enterprises.

Registration in special and ordinary sections produces different effects (see above).

In the registry I can verify who is the legal representative of an enterprise. That's important if I'm a

seller and I have to sell to a corporation.

Declaratory effectiveness.

The declaratory effectiveness makes the registered acts of facts opposable to third parties; this

means that an item registered in the ordinary section is considered known by everybody, withoutpossibility of opposite evidence, An act or fact which isn't registered is considered not known by

third parties, unless it's proved that they had knowledge of it.

The registration in the special section of an agricultural entreprise produces declaratory effects.

The Constituent effectiveness

The constituent effectiveness renders the registered fact or act productive of effects towards third

parties. It applies, for example, to the filling in the register of enterprises of the memorandum of

association of a company limited by shares. The company comes to existence and acquires legal

personality as a consequence of the registration.

Partnership vs Corporation.IF members of a corporation by shares before the registration develop commercial activity we don't

have corporation by shares but partnership.The most important difference between partnership and company is the limitation of liabilities. In

the partnership the member is liable also with his personal assets. If a commercial partnership

makes bankruptcy there is also personal bankruptcy of the members.

In the case of a corporation only the assets of the corporation are liable for the corporation's credits.

They can satisfy themselves only using the corporation assets.

The registration in the registro produces the CORPORATION. Before we had only PARTNERSHIP.

Registration data.

Important data of the enterprise to be registered within 30 days:

Surname, name, date of birth and citizenship of the entrepreneur. The name of the enterprises The purpose of the enterprise The registered office of the enterpise1 Surnames and names of the institori (Chief Officers) and procuratori (nominees).

The entrepreneur is required to request the registration of any changing regarding the above

elements.

Finally, the entrepreneur must request the registration of the winding up of the enterprise; the 3' day

limit is foreseen also for the registration of changing and winding up.

When I make something and my partner is a company, the first thing that I make is a misura

camerale in order to know where the office of the company is and who is the owner of the

company. The law say that to start a proceeding I must send a communication to the registered

office.

Commercial Representation.1) Institore (Chief Executive Officer)2) Procuratore (Nominee)3) Commesso (clerk)The CEO.

Receives his powers in consequence of his setting. General representation power: he may carry out

all acts assetsing (?) the enterprise at the head of which he is placed. He carry out all acts and

activities of the enterprise. He can make contracts, he can buy and have all the powers with 2

Exceptions:1) He may not sell the entrepreneur's real estate;2) He may not grant mortgages on the entrepreneur's real estate.


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In italian: Il rappresentante SPENDE il nome del rappresentante. The CEO uses his power of

representation when he says I'm the CEO and I act in the interest and in the name of the

entrepreneur.

N.B: CEO =/= AMMINISTRATORE DELEGATO (In EN: General Manager). This one is themanager, a person with a particular relation with the company. In Italy the manager is the member

of the administrative board, he's not a subordinated worker. The CEO is a subordinated worker (the

head of subordinated workers) with a long time contract, under the AD. In Italy the CEO is calledDirettore Generale.

The Nominee.

Has the power to carry out, on behalf of the entrepreneur, the activities pertaining to the enterprise,

even if he is not places at its head.

I.e. the head of a FILIALE of a bank is the Director and Procuratore (Nominee). He has a small

power of representation. He has only a certain amount of money and can act between that limits.

The Clerk.

May carry out the activities normally implied by the operations they are in charge of, i.e. they may

carry out the activities which are within their competence.

He's not the owner of a shop, normally he gives goods and receives money. He has small power of

representation of the entrepreneur. The law establishes that the clerk must observe instruction of theentrepreneur.

BookKeeping Entries.The commercial entrepreneur must keep:

Two defined accounting books: the daily book and the inventory book (libri contabili). Other undefinied entries as required by the nature and size of the enterprise. They may beimposed by the natural size of the enterprise.

Daily Book

(Libro Giornale) is the book into which the operations pertaining to the enterprise activity must be

registered day by day.

Not to be registered on the day they are carried out (also the day after I.e.), but they need to be filedas soon as possible and respecting the cronologic order. The civil code does not set a time limit for

registration, whilst tax legislation sets a limit of 60 days.

Inventory Book.

(Libro inventario) Prepared at the beginning of the enterprise activity and after that at the end of

each year. Every inventory must show and evaluate the enterprise's assets and liabilities.

The inventory ends with the financial statement, i.e. the balance sheet and the income statement.

Principles of evidence and truthfulness, of a orderly book keeping.

Sticazzi Book.

(Book di sta cippa) must be fulfilled if the entepreneur has voglia of do it. Sometimes if there is a

ceppa nera situation cannot be fulfilled.

Formalities.

The daily book and the inventory book must be numbered progressively on every page. The duty of

initial stamping has been repealed. All book keeping entries must follow the rules of orderly book

keeping, without white spaces, spaces between lines or additions in the margins; erasures may not

be made, and any necessary cancellation must be made ina way that leaves the cancelled words

readable. The book keeping entries mus be kept for 10 years from the date of the last entry.

This book and in general this documents has a particular effects for the point of view of the proof in

commercial controversies.

Probative effectiveness of keeping entries.

Book keeping entries may be used as proof tools, in particular they always prove against the

entrepreneur, whilst they can be a proof in favour of the entrepreneur only in connection with otherentrepreneurs and for relationships assetsing the enterprise activity, as long as they are regularly

kept.


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Legal documents

Imprenditore must keep in orderly way, for every business, the originals of received letters,

telegrams and invoices as well as a copy of all sent letters.

The Assets and the transfer of assets.Complex of goods organized by the entrepreneur in order to carry out the enterprise activity. It is

possible to transfer the enterprise assets authenticated written form of public deed.The contract must have the certification by the notary when there's transfer of assets.

Prohibition of Competition

Who sells the assets is not allowed for 5 years from the transfer, to start a new enterprise which

because of its purpose, its location or other circumstances is fit to subtract customers from the

transferred assets

We have prohibition of competition only if there's a transfer of assets.

Succession in contracts.

All Contracts pertaining to the assets are transferred together with the assets theirselvesexcept;

Contracts with a personal nature (for example the contract with the factory psychologist, orthe legal counselling contract, and so on); Contracts specifically excluded by the assets transfer contract are not transferred. Destiny of claims and debts. I have a transfer of assets when I receive something to run and carry on a commercial activity. If

this is not happening, I Receive goods not assets.

Destiny of credits of the transferred assets.

The credits of the transferred assets are transferred together with the assets the transfer doesnot require notification to the transferred debtor, nor his assent.

Following the general rules it is necessary, to have the debtor pay the new creditor, to notify the

assignment to the debtor or to have his assent. If there's no assent the debtor it's possible doesn't

know about the assignment and can pay well also paying to the old creditor. In the case of the

transfer, the credtis are transferred with the assets without necessity of notification. The buyer is liable for the debts resulting from the obligatory book keeping documents.Kind of companies.Partnerships:

Societ Semplice (SS) Societ in nome collettivo (snc) Societ in accomandita semplice (sas)Companies:

Societ per azioni (SpA) Societ a responsabilit limitata (Srl) Limited Liability Company Societ in accomandita per azioni (S.a.P.a.)Societ semplice (S.S.)

Societ Semplice may only carry out agricultural activities: some tax legislation rules have,

however, permitted to use the S.S. Also for commercial activities, such as, for example, estate

administration. The other partnerships, i.e. snc. And sas, may carry out both commercial and

agricultural activities.

As to the form of the societ semplice contract, no special form is foreseen. The partnership

contract may be modified only with all partners' assent, unless differently stated in the articles of

association.

Contributions.Contributions are normally foreseen in cash but they can also be in goods or services.If the contributions are not determined in the partnership contract, it is presumed that partners are


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obliged to contribute, in equal parts, what is necessary for reaching the partnership's object.

All contributed goods are to be used within the partnership to the scope of reaching the partnership's

objectives.

The direction of the partnership.The direction of the partnership may be assigned following two models: disjunctive management

and conjuntive management.

By the disjunctive management model, every direction partner is called to manage disjunctlyright of opposition. By the conjunctive management model, more partners are called to manage together and theassent of all managing partners is required for every management act.

The majority principle.All managing decision are taking by the majority and not by only one.

In the case of SS if the partnership contract does not say anything every member is also manager.

There' s a problem of representation: a collective being must have a legal representative but in the

SS every person is also the legal representative of the SS. In order to make extraordinary

administration and important acts (i.e. sell of an immoveable of the partnership) is necessary the

agreement of the majority while for normal administration one is sufficient.

Sharing profits.Each partner has not only managing power but in SS has the right to have his part of profits, after

the rendering of accounts has been approved. Every year after the balance every member has a part

of the profits. The amount is proportional to contribution received by parties during the year. If the

value of contribution is not determined by contract they're presumed do be equal (contribution in

losses and profits). It's possible in the contract to establish a different participation (i.e. a member

on the basis of the contract may have the right to share an higher part of profits and a less part of

losses) patto leonino.

The two models (Company by share and partnership) are paradigmatic models: they show the basic

rules established by the SS with some exceptions.

Debts.Italian lawyers say there's a not limited liability for the partners of SS. Means that when I becomepartner of a SS I'll be liable for all the debts existing at the moment (made in the past) not only with

my contribution but also with my personal goods.

In SS the creditor of the partnership make as a choice for his payment to the partnership or to a

member of the partnership (liability in solido). If he asks to a member, this one can say to the

creditor that there are goods of the partnership giving the possibility to the creditor to have

satisfaction. In this case he has the duty to use the goods of the partnership mentioned by the

member.

I.e. in the case of a personal creditor of a member of the partnership, this one (creditor) cannot

satisfy himselfusing directly the assets of SS but if the goods of the member are not sufficient,

the member can make a liquidation of the value of his participation in the partnership. In this case

the member goes out of the partnership (1st

method to go out of the partnership, see below).

Going out of the partnership.There are cases the member can go out of the partnership:

If one member dies the partnership goes on with other members if they are 2 ore more. Ifthey are only 2, the other member must make again the plurality of members (finding another

member in six months maximum). One member can decide to go out of the partnership. The case of exclusion: We have exclusion when a member commits a breach of hisobligation as member, and so the others decide to throw him out. He must anyway commit a very

serious breach of the partnership.

When the Socio d'opera (the one who gives labour and not money/goods) becomes notable to work.The member who goes out of the partnership is liable for the payment of the debts until the moment


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he goes out.

Ending of the partnership.The partnership ends:

When it reaches its object/aim, when there's the impossibility to carry out the common activity (i.e. when the partners do notagree about the activity carried on together),

when only one member remains if he cannot find another one, when the members decide to end it.When partnership ends goes in a particular situation: liquidation. Means that it goes on living but

only in order to satisfy its debts. The partnership cannot carry on activities for personal purposes.

SUMMARY: The particular element of the SS is the fact that members in the partnership are at thesame time also managers and legal representatives, and if the partnership contract does not say

differently we have all the powers in the hands of any member of the partnership. Power and

liability go together (if i'm liable is easy I exercise my power thinking). When there's not liability

there's not power. In the case of SS we have all the managing power in the hand of members.

The Societ in nome Collettivo

In the SNC all partners are unlimitedly, jointly and severally liable for the company's obligation,even if they are not director.

The new partners are unlimitedly, jointly and severally liable together with the other partners for

partnership obligations (i.e. debts) arisen before they become partners (as in the SS).

Partnership name.i.e.: Broken wings SNC of Tom Red and C.

The partnership name may also contain the name of an existing or deceasaed partner (because it is

known by customers), if the exit partner or the heirs of the deceased partner agree. Reading the

name you can realize the name of one of the partner (that is liable for debts) you can satisfy

yourself as a creditor using the personal goods of that person (and other members). For the SNC the

name is something like a trade mark.

The SNC is run with the rules of the SS unless it's said different. Contents of Articles of association.The MEMORANDUM OF ASSOCIATION is the true contract creating the company, whilst the

articles of association contains the rules for the functioning of the company.

The CONTRACT, different of memorandum, must contain:

Data identifying the partners; Partnership name The names of the partners who are directors (also a non-partner can be confirmed as adirector) and representatives of the partnership;

The partnership's objects; Each partner's contributions, the value associated with them and the method of evaluation: The duration of the partnership; The address of the partnership's registered office (sede legale) and any branch offices; The performances activity-contributing partners oblige themselves to: The criteria for sharing profits and lossesRegistration in the register of enterprises (obligatory) within 30 days from the formation of the

partnership. For registration authenticated private written document or public deed.

No Registration.If registration lacks, the partnership is qualified as irregular; the relationship between the

partnership and third parties are regulated by the rules designed for the societ semplice.

There are many consequences, the most important is the fact than in the SNC creditors of the

partnership have the possibility to satisfy themselves using the personal goods/assets of themembers (because members are of course personally liable). BUT:

In the case of SS the partnership creditor can ask for the payment immediately to a member of the


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partnership using his personal money, but there are assets/goods of the partnership that creditor can

use to satisfy himself first, before using personal money.

In the case of SNC (if it's regular) there is another rule: Members are personally liable and must pay

debts using personal money but the creditor cannot satisfy himself using personal assets of members

if before he has not tried to satisfy himself using goods of the partnership also going on with the

execution BENEFICIO PREVENTIVA ESCUSSIONE.

Prohibition of Competition.Partners may not carry out, on their own or other people's behalf, any activity competing with thepartnership's activity, nor participate as unlimitedly liable partners in any other competing

partnership (especially for other partnership in the same territory).

Permission if there is other partners' assent. The other partners' assent is presumed if the competing

activity was already carried out before the partnership was formed, as long as the other partners

knew about this.

In case of breach: damages and exclusion. Possible to be limitedly liable partner in another

competing partnership or company

Partners' liabilityPartnership creditor may not ask for payment of his credit without having previously turned to the

partnership and only if his action is fruitless, i.e. is unable to satisfy his credit, he may turn to thepartner. The case of irregular SNC.

Individual creditor of a partner.An individual creditor of a partner may not request liquidation of the debtor partner's quota. He can

make opposition to he prorogation of the life of the partnership and in this case obtain liquidation of

debtor partner's quota.

Winding up and liquidation.Expiration of the term of duration;

Achievement of the partnership's object or impossibility of achieving it (for ex. Irremediable

disagreement among partners);

Partners' resolution;

No plurality of partners not made again within 6 months; other events specified in the articles ofassociation declaration of bankruptcy;

administrative liquidation of the partnership, Winding up produces liquidations. Liquidations must

turn the partnership assets into cash and with the income they must pay the partnership debts. If

something remains, partners share it.

The Societ in Accomandita Semplice

Two categories of partners:

Accomandatari (unlimited partners) Accomandanti (limited partners)Accomandantari are jointly, severally and unlimitedly liable for partnership obligations, the latter

are liable limitedly to the amount contributed.

Partnership name.i.e. Broken wings sas of Tom Green and C

If a limited partner accepts his name to be inserted into the partnership name, he loses the benefist

of limited liability towards third parties, and therefore becomes jointly, severally and unlimitedly

liable for partnership obligations in external relationships.

Applicable rules.Rules applicable to the Societ in nome collettivo as far as not differently regulated.

The partnership must be registered in the register of enterprises, and in case this is not done the

partnership is called irregular. In this case, the rules governing the SS apply to the relationships

between the partnership and third parties.There are some specific rules anyway:Articles of Association.Indications foreseen for the snc and of unlimited partners and limited partners. The unlimited


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partners have the rights and obligations foreseen for the societ in nome collettivo (partnership

direction). Members who have no limitations (accomandatari) are the only people who can manage

the partnership and can be managers of the partnership.

Accomandanti.A general management prohibition concerns the limited partners. Violation produces jointly,

severally and unlimitedly liability towards third parties for all partnership obligations and possible

exclusision. Exceptions: An accomandante can manage specific power of attorney for singlebusinesses (if accomandatari give to accomandanti the power to do that); Services under direction

of the directors; Yearly communication of the financial statement and check of its accuracy by

consulting the partnership's books and other documents.

Winding upThe same causes of SNC.

A specific one: If there are no more limited partners, or no more unlimited partners, unless the

plurality of partners' categories is created again within 6 months.

If there are no more unlimited partners, in the 6 month period the limited partners nominate a

temporary director for carrying out ordinary management acts.

Winding up produces liquidation..The Companies.There are as we saw 3 kinds of companies: Societ per azioni (company limited by shares) Societ in Accomandita per azioni Societ a responsabilit limitata (Limited Liability company).The rules applicable to the societ per azioni are mostly also applicable in the societ in

accomandita per associazioni. Spa and SRL imply limited number of members. They run the risk

to lose only their assets they have legal personality. They are different subjects of the members.

Societ Per Azioni.

The Societ Per Azioni is ruled by the general principle of shareholders' limited liability:shareholders are liable limitedly to the contributed amount.

The company name may be formed in any way, but it must contain the indication of SPA

A SpA must have a minimum capital of 120000. The assets of the company is the only assets liable

for debts and satisfying creditors. Also in the case of bankruptcy (that is possible), it involve only

the company and the assets of the company. Members of the company are protected.

Only if a member of the company gives guarantee that he will pay if the company does not pay, he's

liable for company's debts (strategy often used by banks when they give loans).

Contents of the memorandum of association.In the memorandum of association the following informations, among other, must appear: The company name The town where the registered office and any branch offices are locatedVoidness of the company.The voidness of the company once it has been registered at the register aof enterprises can be

declared only in following cases:

The memorandum of association have not been executed in the form of a public deed; the

company's object is illegal;

in the memorandum of association there is no indication of the company's name, the amounts

contributed into the company capital or the company's object. Liquidation.

A contract made by a void company is void itself.

i.e. We are 3 people making a spa. The company buys and sells again cars. First of all we make the

contract (company contract) in which we say Tizio and Caio agree to establish a SPA having thefollowing conditions... then we ask and obtain registration and star the activity. First finding an

house where organize the car shop, then making a contract with the owner of the house, finding a


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car producer and making a contract with a car producer in order to buy cars and selling one of this

cars to a customer. After the company has been established we start to carry out activity. The

company speaks and acts via managers (that makes the 3 contracts: contract with car producer and

with house owner and contract with the customer that bought one car).

First case: I pay all the sum of money for the house but I have to pay part of the price to the car

producer (because I sold only one of the three cars). We used all the contribution to pay the house,

and we have a debt towards the car producer. For the legal point of view we have the companyestablished by the company and then the 3 contracts the company made (all correct and valid).

After the registration a cause of invalidity is discovered (i.e. we realize we made a mistake at the

moment of conclusion of the contract). It is an even that allows declaration of voidness ALSO after

the registration (one party asks for the declaration of voidness and judge declares it). In this case we

apply the general rule: Void the company Void the contracts made by the company. If this rule

is applied protects the members of the company because things run in a bad way and we producedlosses ifit's possible to void the contracts things come bad at the moment before the conclusion

of the company, it is an interest to have the declaration of voidness also of the contracts (cause they

are gaining losses). BUT this rule is against the THIRD PARTIES (that have the interests to see

contracts valid in order to satisfying their credits). These are conflicting interests. The legislator

chooses to protect the interests of the third parties (because they had faith the company was valid).THIS IS THA SYSTEM (cit, Gianola).

CONSUMER LAW(Cristina Valentina)Kind of law quite close to our everyday life. In Italy we don't have special rules about consumer

law. Consumer law is a quite new law in Europe. In 1957 the EU started with the treaty of law by 6

states (DE, FR, IT, BG, etc..), but consumer law started just in the 80s.

Historical Background.The first place where protection of consumers started were USA in the early XX century. They

started to look at consumers problem about cars (in case of car accident, who should pay?) andfood. In 1929 with a strong crisis the USA legislator enacted some acts in order to protect

consumers.

The question became strong in USA with the problem of the Chevrolet Corvair (GM) of Ralph

Nader. This car had many defects and the consumers made the first class action against General

Motors. GM and Nader had to pay a very high fee to consumers.

After this fact the consumer problems became very strong and known.

Also in some EU states legislator started to enact acts for protecting consumers. First in Germany

(against problems of competition on the market and bad contracts with consumer). The

Scandinavian legislator started adopting some rules about market behaviour. In Italy at the time

there was no specific legislation about consumer law.

In 1957, EEC (European Economic Community) was founded among the six states. They wanted to

improve the living and working condition of the member states (more work opportunities, higher

salaries, etc...). But the way it was understood was mainly an economic point of view with the free

circulation of goods, capitals, and enhancing competition in the markets of the member. There

weren't considered social aspects and consumer interests.

Improving living condition includes many aspects not considered in EEC: we live better in a better

environment, we live better if we have better consumer law, etc..

The treaty in 1957 (treaty of Rome) originally did not speak of consumer at all. In 1986 (single

Act), 1992-1993 (Maastricht treaty), 1999 (Treaty of Amsterdam), etc... consumer law was inserted

in the treaty of Rome (modified by these treaties) and EU legislation. These treaties said that

consumer protection must be taken into account by policies of EU. The EU community startingfrom Maastricht treaty was no more only an Economic Community, there were interests in otheraspects a part from economic one. The term EC (European Community) and EU (European


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Union) were introduced with this treaty in 1992, instead of the precedent EEC (European

Economic Community). The Treaty of Lisbon in 2009, joined the 2 expressions and now there is

only EU.

The first legislation about consumer protection was made in the 80s in EU.

Useless excursus on EU: European union is made by: Directives and Regulations (laws). EU

Council (made by ministers of member states), EU Parliament (directly elected by people).For consumer protection the main instrument used in EU are Directives. They have to be received

in States and these have to make laws about that, slightly different from State to State. Otherwise,

the Regulations are a stronger and strict instrument, giving everybody the same rules, used in other

matters (i.e. Competition policies, environmental policies, non discrimination policies, etc..), and

not used in consumer protection.

In case of Directives, the internal legislation (i.e. of consumer production) of every State comesdirectly from Directives. In Italy we have Codice del Consumo, that is a collection of rules

coming directly from EU sources (Directives).

Consumer Law.

The consumer is a weak subject on the market for many reasons:1. The producers are projecting, preparing and putting in the market without thinking aboutinforming consumers of the characteristics/how to use/etc.. of the products.

2. They don't have a choice sometimes. (i.e. in case of a bank account).3. If something goes wrong (i.e. if the product is not as promised), the consumer often cannotgo to court against producers due to time and money they would have to spend.

Consumer law is mainly about two aspects:

Protection of health and safety. There is an horizontal DIRECTIVE about general product safety. Consumer products are many,but in general they must be safe and they must respect EU rules about safety. It's a general rule, they

have to be safety even if they don't have a specific directive. If the product is defecting and this creates a damage (i.e. a car has a defect and you crash) there's

a different problem of guarantees, and we have an horizontal DIRECTIVE about Product Liability(the producer has to pay damages).

Protection of economic interests. STANDARD CONTRACTS. Between a consumer and producer, that usually contains littleclauses or they're not written clearly. Moreover consumer signs a contract made before, and not

discussing about it with the company.

There was a DIRECTIVE against standard contracts in 1993 (93/13) and in particular against

Unfair Contract Terms (Clausole Abusive). That says in standard contracts with consumers any

clause which creates an unbalanced situation within professional and consumer is not valid even if

the consumer has signed it.MISLEADING ADVERTISING. There was a DRECTIVE against it (84/450). It didn't bringmuch debates. It basically prohibits misleading advertising. There is a directive with a special

regard for weak consumers (children, superstitious people, terrons, etc..).

In the '84 where this directive came out, comparative advertising was prohibited in almost all

countries in Europe (in USA and UK was legal). This directive didn't say nothing about this kind of

advertising.

COMPARATIVE ADVERTISING. Only in 1997 with another DIRECTIVE (97/55) the

comparative advertising is legal in all European Contries, but of course unfair comparative

advertising (this advertising is legal only if it says the truth and is informative) is stricly prohibited.

Anyway it's very difficult in Europe make a correct comparative advertising, but it's possible. DIRECT SALES: Catalogue Sales (There were regulations about the photograph on the

catalogue), Doorstep Sales, Internet Sales (regulations on when you can receive the goods,


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regulations on refunds). Regulations for the Cooling off period for the moment the customer

see the actual good, he has 10 days for changing the goods, In italian Diritto Recesso. Regulations

on the Right of withdrawal.

AFTER SALE GUARANTEES. DIRECTIVE (99/44). If the good is not as promised In thecase of lack of conformity (the product does not give the ways of use of other products of the same

category). i.e. if you buy a car without reverse gear, even though in the contract there wasn't written

anything about that. i.e. if you say to the car seller you need a car for offroad and he gives you a nonfunctioning car for that aim. In IT you have 2 months for when you discover the lack of conformity

to obtain a refund.

UNFAIR SALES PRACTICES. Practices that push the consumer to some purchase, or which omitsomething in the contract. i.e. the Package of holidays, Timesharing (multipropriet)

Cooling off period:

If the entrepreneur makes me an offer that he reputes incredible and only for the moment, the

consumer may think that instead of he doesn't need the think he will buy that because it's just for the

moment the special offer. In order to protect consumers legislator establishes the cooling off period.

It's possible that the buyer buys something only because there's a surprise and not for a need.

Also Roman law established rules about mistake, misrepresentation, duress (costrizione, violenza),and the defect.

Cooling off period was invented by the english legislator. In France they speak about Aggressive

saying the marketing strategy is very aggressive towards the consumer. i.e. an ent repreneur

offers an encyclopedia free to a consumer, but this one have to pay the updating vo

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