1. rule, norm to direct human conduct ⇒regular, normal behavior
1.1. personal, factual, general, abstract rules ⇒general + abstract encompassed by higher sources of law
1.2. LEGAL SYSTEM
1.2.1. = system of laws whose enforcement is entrusted in the authority of court
1.2.1.1. judicial pwr = Court of Cassation (matter of law not of fact), Constitutional Court
1.2.1.1.1. separation of pwrs from Napoleonic Code
1.2.2. sources of law = legislations + legal literature (bc no field of relity impervious of influences) even though should be CLOSED ≠ Ancient and Common Law
1.2.2.1. Constitution
1.2.2.1.1. since 1948 principal source of law
1.2.2.2. EU laws
1.2.2.2.1. • TFEU • regulations • directives
1.2.2.2.2. absolute scope of principles of direct effect + precedence
1.2.2.3. ordinary law
1.2.2.3.1. statutes/acts
1.2.2.3.2. decree law/legislative decrees
1.2.2.3.3. regional laws + laws of autonomous provinces of Trent and Bolzano
1.2.2.3.4. referendums
1.2.2.4. delegated and subordinate legislations
1.2.2.4.1. domestic regulations made by ministers - municipalities
1.2.2.5. custum/usage
1.2.3. follows • domestic law • ratification of international laws • ItPIL
1.2.3.1. ItPIL It Private International Law • legal capacity, capacity to act • personal, patrimonial relations between spouses • filiation, succession • ownership, other rights in property • law of obligation, contract law (Rome Regulation I) • tort and product liability
1.2.4. diverging laws
1.2.4.1. rank = presumption of implicit repeal rank ≠ prevails one of higher rank
1.2.4.2. implict repeal, explict repeal, obsolescence, general/specific, Corte di Cassazione
2. fattispecie/Tatbestand are general + abstract
2.1. complex base situa
2.2. statuatory provision
2.2.1. articles, commi (paragraphs) CC →Books →Titles →Headings → Sections
2.2.2. interpretation = process by which take specific meaning (literal, legal, evolutive)
2.2.2.1. based on non-arbitrary criteria + consistent w/ text being interpreted
2.2.2.2. literal, teleological, systematic, restrictive/extensive, by analogy
3. CIVIL WRONG = TORT 1. act both negligent/intentional 2. wrongdoer vested w/ capacity to act 3. injury consequence of such an act 4. injury is directly grievious to damaged party ⇒compensation for damages to aggrieved party
3.1. facts ≠ act
4. norm precept ⇒ norm sanction
4.1. (non)contractual wrongs
5. court category
5.1. ordinary jurisdiction assessed by carreer judges
5.1.1. criminal wrongs
5.1.2. civil wrongs assessed by private law, based on Code of Civil Procedure
5.2. administrative jurisdiction
5.2.1. whether administrative bodies were • incompetent • exceeding their pwr • in violation of law
6. obligations
6.1. = relationship debtor-creditor.
6.1.1. art 1174 - object-matter • economically valuable • interest of creditor, even non-patrimonial
6.1.2. latter under duty to carry out performance in favor of former as
6.1.2.1. 1. giving/delivering something
6.1.2.1.1. object-matter = giving thing + safeguarding it until actually delivered subject-matter = thing
6.1.2.2. 2. doing something (nominated contracts) 3. refraining from doing something
6.1.3. barganing pwr
6.1.3.1. legal system protects creditor: exact performance = smoother circulation of wealth
6.1.3.1.1. parties must act due diligence = exercising odinary diligence of a reasonable person
6.1.3.1.2. circulation of
6.2. termination of obligation
6.2.1. novation = substitute old obligation
6.2.2. declaration of acquittance = waiving of obligation
6.2.3. set-off
6.2.4. merging of creditor + debtor
6.2.5. supervining impossibility
6.3. comprise legal duty + debtor's liability
6.3.1. non-performance ⇒creditor compensated for FLAWED, FAILED, DELAYED performance.
6.3.1.1. ADEQUATE CAUSATION = directly and immediately apt at producing damage
6.3.2. COERCIVE enforcement of performance
6.3.2.1. replaceable
6.3.2.1.1. selling present + future assets of debtor = compensation for actial losses + loss profits
6.3.2.2. irreplaceable things
6.3.2.2.1. coercive delivery/release
6.3.2.3. contract w/same effect
6.3.2.4. refraining from doing ⇒debtor's expenses
7. Ch 6
7.1. VI Book CC "protection of rights"
8. Ch 10, 21
9. not only method assessed, but also
9.1. due performance = exact fullfillment
9.1.1. place of performance
9.1.2. time of performance
9.1.3. person carrying out performance objective assessment
9.1.4. person receiving performance
9.1.4.1. apparent creditor
9.1.5. nature of performance
10. Ch 1
11. Ch 2, 3, 4
12. Book VI CC = syntagm "protection of rights"
12.1. instruments: prevent the burst/ arising disputes + facilitate potential resolutions
12.1.1. public record ⇒legal knowledge
12.1.1.1. make public certain fact/act
12.1.1.2. inform third party abt transaction
12.1.1.3. render act effective
12.1.2. evidence
12.1.2.1. outcome of evidence = proof
12.1.2.1.1. presented by plaintiff to sustain his claim (up to parties to initiate legal action)
12.1.2.2. evidence can be
12.1.2.2.1. documentary = any assertion/ material item that may be submited to a court
12.1.2.2.2. legal
12.1.2.3. testimony by witness
12.1.2.3.1. court has discretionary pwr to assess whether witness admissible or not
12.1.2.4. confession + oath
12.1.2.5. presumptions
12.1.2.5.1. technique ⇒discover unknown facts starting from known ones.
12.1.2.5.2. admissible only when testimony is admissible: "serious, precise and concurring" cases.
12.1.2.5.3. not ways to
12.1.3. certainty of rights and time lapse
12.1.3.1. limitation
12.1.3.1.1. all rights are extinguished by way of limitation whenever they are no longer exercised within the time limits presctribed for by law
12.1.3.1.2. presumptive limitation
12.1.3.2. rules
12.1.3.2.1. lapse of time
12.1.3.2.2. suspension
12.1.3.2.3. interruption
12.1.3.2.4. time-limit
12.1.4. litigation
12.1.4.1. standing to sue = interest to file action in
12.1.4.1.1. plaintiff is vested w/subjective interest
13. natural incapacities
13.1. lacking capacity to understand and intend, even transient
13.2. ⇒annulment in case of • ∃ of incapacity at moment • unilateral act seriously prejudicial to subject lacking capacity • other party acted in bad faith (while reliance on validity of contract if acted in good faith)
13.3. exempt from liability unless incapacity caused by their own fault
14. peculiar cases
14.1. plurality of performances
14.1.1. a. primary + secondary impossibility b. alternative obligation (original/superving impossibility ⇒ simple obligation) c. elective obligation
14.2. plurality of persons: obligation •"in solido" = joint and several liabilities • or limited liability
14.2.1. debtors
14.2.1.1. legal system prefers in solido due smoother extinguishment of debt
14.2.1.1.1. if one does not perform all responsible
14.2.1.2. limited liability
14.2.1.2.1. each cover their share and resposibility for non-performance of one, limited to that individual
14.2.1.2.2. obtained in case of inherited "in solido" debt ⇒becomes limited
14.2.2. creditors
14.2.2.1. legal system prefers that each creditor get compensated not in solido (for certainty of repayment)
14.2.3. obligation indivisible by nature
15. art 1173 CC - source of obligation: • contracts • wrongful acts • any act/fact capable of obligation at law.
15.1. ambulatory feature = connected to legal status give rise to it
15.2. related to right of ownership/other right in property
16. DAMAGE
16.1. two meanings = injury to an interest or prejudice or loss deriving from injury to an interest
16.2. compensation
16.2.1. in tortious liability, even unforeseeable damages must be compensated
16.2.2. • monetary damage • restitution to original position
16.2.2.1. assessment of damages
16.2.2.1.1. must cover actual losses + lost profits
16.2.2.1.2. liquidation for damages assessed by court
16.2.2.1.3. principle of CONTRIBUTORY NEGLIGENCE reduction of compensation due victim's fault
17. natural vs artificial persons vested w/rights and duties + entitled to enter legal relationships.
17.1. legal capacity = originates at birth a prerogative of Constitution + principal statuses persons were entitled to have (libertatis, civilitatis, familiae)
17.2. legal persons have separate legal personality
17.2.1. i.e. their personal assets and liabilities are separated from the ones of, as an instance, the registred associations, stock companies, foundations
17.3. collective entities
17.3.1. persons who acted in name/on behalf of e.g. non-registred associations are liable jointly and personally.
18. legal competence = capacity to act: reached at age of majority until and if mental imparment render persons incompetent
18.1. general incapacities • minority • judicial interdiction (routinely impairment) • interdiction at law
18.2. partial incapacities • emancipation • limited conservatorship
18.3. support-administrator
19. court
19.1. Justices of the Peace (small civil matters)
19.1.1. Tribunals (first instance)
19.1.1.1. Court of Appeal (second resort)
19.1.1.1.1. Court of Cassation (last resort)
19.2. coercive enforcement of rights supported by documents
19.2.1. judgements injuctions bills of exchange public deeds
19.3. arbitration
19.3.1. alternative resolution to disputes, when usually parties agree > ⇒a judge is appointed/someone that will decide based on equity.
20. liability
20.1. unlawful act entails 1. pre-∃ relationship debtor-creditor 2. non-exact performance of debtor 3. ↪︎caused damage to creditor
20.1.1. damage
20.1.1.1. entail
20.1.1.1.1. objective terms: wrongdoer acted negligently/intentionally
20.1.1.1.2. subjective terms: wrongfulness + causation
20.1.2. ≠ tort ⇒liability not arising from precedent relationship between wrongdoer and injured party