Italian Civil Code Research Articles

Burden of proof: The erosion of and ancient rule

The ancient rule of the burden of proof contained in Article 2697 of the Italian Civil Code has experienced a significant erosion in recent years due to case law. The judge often creates presumptions and distributes the burden by asking the party that has the greatest possibility or facility to provide evidence. The rule of the burden of proof, moreover, was traditionally understood to mean that the burdened party had to provide full evidence, only in such cases the burden could be considered to have been met. But even this rule, in many areas, is no longer respected, as case law uses quite different standards of proof, even settling for the so-called prevailing probability. Lastly, a further erosion factor is related to the increasingly frequent use of court-appointed expert witnesses to provide the judge with elements useful for the decision, so that the reference to the party responsible for providing the evidence is disregarded.

‘Urgenda-Style’ Strategic Climate Change Litigation in Italy: A Tale of Human Rights and Torts?

Abstract This contribution addresses the first strategic climate change litigation filed against the Italian State, the Giudizio Universale case. Giudizio Universale’s legal architecture is largely akin to other landmark cases filed in Europe, such as Urgenda in The Netherlands and Klimaatzaak in Belgium. Accordingly, Giudizio Universale is grounded on the state’s breach of international and EU obligations, the encroachment of human rights enshrined in the European Convention on Human Rights and the Italian Constitution, and the consequent attribution of domestic tort liability to the state under the Italian Civil Code. This article thus examines the main arguments raised in Giudizio Universale in light of the underlying domestic human rights and tort liability regimes. It first investigates the interplay between the breach of climate change obligations and human rights infringement as presented in the complaint to understand whether, and to what extent, Italian courts could give deference to an ‘Urgenda-style’ claim. Second, it unpacks the existing interpretation of tort liability as applied to state liability vis-à-vis its citizens by Italian courts. Third, it factors Giudizio Universale in the recent Italian Constitutional reform, which explicitly introduced the protection of the environment, biodiversity and ecosystems, as well as a reference to the ‘interests of future generations’, into the fundamental principles of the Italian Constitution. Overall, the article concludes that several limitations exist in the Italian legal system in the pursuance of strategic climate litigation against the state for its (in)action against climate change. One of the merits of the Giudizio Universale case, however, is that it challenges these limitations to provide another suitable tool for ensuring protection against the climate emergency.

От locatio operarum к contratto d’opera: возмездное оказание услуг в истории итальянского права

In the article are regarded three stages of services agreement formation in Italian law. Author demonstrates adaption of the Roman Law contract locatio-conductio in Middle Ages and Modern Period and steading forthcoming of differences characterizing this contract across European borders. The fi rst stage of services agreement codifi cation is revealed with the Italian Civil Code of 1865. In the article are explained causes of changes happened at the second stage of codifi cation and the main features characterizing services agreement at the modern Italian Civil Code of 1942. The conducted research shows that after infl uence of French and German legislators Italian scholars produced universal rules for conducting any operation. At the same moment, that rules does not exclude the necessity to divide services agreement from other contracts.

Taming the Italian ‘Trojan horse’: the a non domino sales of cultural objects

Abstract For a long time, scholars have argued that Article 1153 of the Italian Civil Code, regulating the good faith purchase of goods, creates a ‘congenial place’ for buying stolen cultural objects. What is an Italian domestic concern becomes international in international cases where Italian law is found to be applicable. Consequently, both scholarship and case law have looked into the problem and questioned the applicability of the article to cultural objects. This Contribution explores the contours of the norm, explains how it risks playing the role of the ‘Trojan horse’, and then shows why it was essential for the Italian Supreme Court to intervene. In deciding on a case concerning the ownership rights of Peruvian and Chilean cultural property sold a non domino and located in Italy, the Italian Supreme Court upheld the ruling of the lower Court and applied the principles of international public order derived from cultural conventions. Where the application of Italian law, specifically of Article 1153 of the Italian Civil Code was necessary, the Supreme Court strengthened the article's constitutive element of good faith by making hermeneutical use of Article 4 of the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects. The resulting good faith requires a higher level of care on the art-buyer side, a standard that changes depending on the character of the party concerned. Ultimately the Contribution points to the importance of the choice that the Supreme Court made to identify a dynamic bonam fidem to cope with the problems posed by Article 1153 of the Italian Civil Code.

Ineffective contracts, restitution and the change of position defence

The paper, moving from a cross-border case and with a comparative law perspective, addresses which is the operative rule of Restitutionary claim resulting from an ineffective contract, assessing whether it would be achievable, under Italian Law, the same results of the “Change of Position Defence” under common law. The topic relates to the broader issue of allocating costs incurred by the party who performed a void contract in reliance on its validity, for which, under Italian Law, guidance could be given by Section 1328, paragraph 1, second part, of Italian Civil Code.

Il matrimonio e la famiglia nel Codice civile italiano: un'analisi contrastiva dei termini e delle espressioni del C.C. del 1942 e del C.C. aggiornato nel 2022

The purpose of this article is to analyse the image of the family in the Italian Civil Code. This study is carried out from a linguistic point of view. Passages on the family will be analysed in order to present the roles of the man and woman in marriage. The terminological evolution will be shown by comparing the 1942 Code and the 2022 Code. The aim of the study is to point out how the analysis of a legal text can contribute to a better understanding of a country's culture.

Goodwill Amortization in the Italian Civil Code: Estimation Poblems and a Methodological Proposal

In regulating the financial statements, the amortization of goodwill represents a complex problem that requires a careful assessment of the economic conditions of the firm and their foreseeable evolution. This study aimed to analyze the topic with specific regard to the Italian context, in order to identify the parameters useful for guiding the amortization processes, in compliance with the limits set by the legislation on financial statements. To this end, the study used a methodology based on the legal-economic analysis of the evolution of Italian legislation from 1882 to today and its effects on the economic valuations implied by amortization. The results show that the accounting for goodwill has changed over time, being characterized in the first phase by the prevalence of conservative accounting and by the consequent need to amortize goodwill in the shortest possible time. Subsequently, the accrual basis prevailed over conservatism, and today the basic rule is represented by the useful life of goodwill. The originality of this study lies in the multidisciplinary approach which, by combining the economic interpretation of the company with the legal rules on reporting, proposes an analysis model applicable in the practice of companies that prepare their financial statements according to the Civil Code.

Does the Formal Structure of the Cash Flow Statement have an Impact on the Understanding of the Data Contained In the Report Explaining the Company and Financial Dynamics?

The financial analysis of a company, implemented through ratios alone, can lead to making completely erroneous judgements about the dynamic development of the company's income and expenditure. For this reason, cash flows and the statement that summarises them represent essential elements of the study of the company's financial performance. Various international bodies have addressed this issue since, in most countries, the cash flow statement now identifies one of the elements that make up the financial reporting for the year, on par with the balance sheet and profit and loss. Here we will take a closer look at the central bodies that have addressed this issue and illustrate what has been said about cash flow and the cash flow statement by the American FASB, the IASB, the Italian Civil Code and the Italian Accounting Standards Board. As you will see, all of these bodies propose structures or examples of items requiring the highlighting and re-grouping of needs and sources into three aggregates: operating activities, investing activities and financing activities. Subsequently, we will point out that information limitations characterise these statements.

Goodwill Amortization in the Italian Civil Code: Estimation Problems and a Methodological Proposal

In regulating the financial statements, the amortization of goodwill represents a complex problem that requires a careful assessment of the economic conditions of the firm and their foreseeable evolution. This study aims to analyze the topic with specific regard to the Italian context, in order to identify the parameters useful for guiding the amortization processes, in compliance with the limits set by the legislation on financial statements. To this end, the study used a methodology based on the legal-economic analysis of the evolution of Italian legislation from 1882 to today and its effects on the economic valuations implied by amortization. The results show that the accounting for goodwill has changed over time, being characterized in the first phase by the prevalence of conservative accounting and by the consequent need to amortize goodwill in the shortest possible time. Subsequently, the accrual basis prevailed over conservatism, and today the basic rule is represented by the useful life of goodwill. The originality of this study lies in the multidisciplinary approach which, by combining the economic interpretation of the company with the legal rules on reporting, proposes an analysis model applicable in the practice of companies that prepare their financial statements according to the Civil Code.

Legal anthropocentrism between nature and technology: the new vulnerability of human beings.

Reflection on the possible reform of the Italian Civil Code requires an analysis of the evolution of the relationship between subject and object of law in the legal systems of the Western area. From this perspective, we note the thrusts toward a recognition of legal subjectivity to nature, animals, but especially to devices endowed with AI. At the same time, on another side, strong tendencies toward objectification/reification of human beings (and animals) emerge, from their origin to the different stages of their development. Anthropocentrism implodes, heading toward a transhumanist drift that only an inclusive humanistic vision of every living being could stem.

A Model for Europe? The Enhanced Level of Due Care in Article 2050 of the Italian Civil Code, A Theoretical and Empirical Study of its Content and Effects

A Model for Europe? The Enhanced Level of Due Care in Article 2050 of the Italian Civil Code, A Theoretical and Empirical Study of its Content and Effects

The limits of the consensual principle and the structure of a contract of obligation in Italian civil law

The Italian legal system belongs to the so-called Roman family law. However the distinction between a contract and an agreement, famously applied in French civil law, has not been adopted by Italian legal system. The peculiar features of the concept of contract adopted under Italian law pertain to the fact that, without borrowing from the French Civil Code, nor from the German Civil Code, the Italian definition of contract expressed in art. 1321 of the Italian Civil Code has plain and concise textual meaning, specifying both the nature and legal consequences of contract making. The Italian Civil Code generally identifies a contract with an agreement of the parties concluded for the so called legal cause of the contract understood as the economic and social function of the contract. The regulation concerning concluding and enforcing contracts in accordance with art. 1324 of the Italian Civil Code have been extended to other legal actc, in particular unilateral ones, provided that they are inter vivos and the terms of contract pertain to obligatory or proprietary relations. The paper focuses on the limits of the principle of contractual consent in Italian law. The principle generally refers to the agreement as the general underlying legal condition for validity of any contract. The principle has a significant impact on the legal effects of a potential ex post collapse of the contract due to its’ invalidity in case of the transfer of ownership concerning both personal property rights and immovable property rights.

Similarities and Differences Between the Albanian and Italian Succession Law

Summary In 1994, Albania codified the current civil code, harmonizing the national legislation with the democratic values of the Western European Countries. This paper fills the gap in the national and international scientific literature since there is no scientific contribution that examines the Albanian law of succession showing the similarities and differences between the Albanian and the Italian civil codes. This is fundamental because according to Article 33 Albanian Private International Law (Albanian Law no. 10 428 of June 2011), which governs cross-border succession law, in the case of immovable goods, the rule of lex rei sitae has been codified. Thus, in the case of immovable goods, the Albanian succession law will be applied to them. In the conclusion, this research demonstrates that the Albanian Law of Succession of 1994 is different in many ways from the rules established in the Italian Civil Code of 1942.

Unsupervised law article mining based on deep pre-trained language representation models with application to the Italian civil code

Modeling law search and retrieval as prediction problems has recently emerged as a predominant approach in law intelligence. Focusing on the law article retrieval task, we present a deep learning framework named LamBERTa, which is designed for civil-law codes, and specifically trained on the Italian civil code. To our knowledge, this is the first study proposing an advanced approach to law article prediction for the Italian legal system based on a BERT (Bidirectional Encoder Representations from Transformers) learning framework, which has recently attracted increased attention among deep learning approaches, showing outstanding effectiveness in several natural language processing and learning tasks. We define LamBERTa models by fine-tuning an Italian pre-trained BERT on the Italian civil code or its portions, for law article retrieval as a classification task. One key aspect of our LamBERTa framework is that we conceived it to address an extreme classification scenario, which is characterized by a high number of classes, the few-shot learning problem, and the lack of test query benchmarks for Italian legal prediction tasks. To solve such issues, we define different methods for the unsupervised labeling of the law articles, which can in principle be applied to any law article code system. We provide insights into the explainability and interpretability of our LamBERTa models, and we present an extensive experimental analysis over query sets of different type, for single-label as well as multi-label evaluation tasks. Empirical evidence has shown the effectiveness of LamBERTa, and also its superiority against widely used deep-learning text classifiers and a few-shot learner conceived for an attribute-aware prediction task.

The Non-Unique Notion of “Control” in Transfer Pricing – Interpretation, Legislative Developments and Problematic Aspects from an Italian and International Perspective

For their concrete implementation, transfer pricing rules necessarily presuppose a tax-relevant notion of “group”, which is built on the concept of “control” among enterprises. The current definition of “control”, under Italian tax law, is the result of a long and troubled process of refining the legislative text. Over time, the Italian tax authorities have always adopted a far-reaching interpretation of “control”, which went far beyond contractual or shareholding connections (that make relevance for the notion of “control” under the Italian Civil Code), resulting in the application of the TP rules even to cases not representing a distortion of the rules of competition, but rather reflecting situations that can be ordinarily found on the market. The notion of “control” has been finally clarified (and circumscribed) by the recent legislative developments, which – despite a number of persistent interpretative doubts – appear also more in line with the international OECD framework, which is briefly discussed in the present article as well.

L’adeguato assetto organizzativo, amministrativo e contabile nelle PMI: onere e onore

Legislative Decree no. 14 of 12th January 2019, in additionto replacing the bankruptcy law and establishing thenew Code of Business Crisis and Insolvency, introducedand amended some articles of the Italian Civil Code on themanagement and control of business activities. Indeed, theregulatory provision, which requires the appointment of acontrol body or auditor for small and medium-sized enterprises,also affects the management of the performing companiesand, in particular, the establishment by these entitiesof an internal control system. The analysis carried out isintended to highlight the benefits that small and mediumsizedenterprises could obtain implementing a valid andadequate organizational, administrative and accountingstructure

THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.

Teret dokazivanja i nedostatak saobraznosti prema Bečkoj konvenciji o međunarodnoj prodaji robe iz perspektive italijanskog prava

The article studies the interaction between the model of sale and purchase provided by the CISG and that of the Italian Civil Code. This is done with a twofold purpose to verify: a) whether, as things stand, the applicability of the domestic law legislation or of the general principles governing the CISG is indifferent in relation to the burden of proof concerning the lack of conformity, and consequently also to the debate concerning whether this aspect is of a procedural or substantive nature; b) whether this burden of proof can move independently of the subjective or objective conception of performance and of whether the seller's performance is associated with an obligation or a guarantee.

THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.

Il diritto del lavoro e il "problema" della subordinazione

The author considers that working 'for others' must constitute the basis of the protections ensured by labour law. The “labour” that deserves social protection cannot be limited to the narrow sphere of technical and legal subordination, but it is necessary to identify a new reference type that goes “beyond” subordination. More specifically, the labour law system must be reconstructed on two interrelated levels: a first civil contractual level in which the regulation takes place on the basis of types and cases; a second “labour law level”, in which the distribution of protections, according to the value of labour, takes also place on the basis of new criteria for expressing the social vulnerability. The interpretative adaptation of the notion of subordination, while feasible, would not lead to satisfactory results. The meaning of the normative statement in Article 2094 of the Italian Civil Code does not seem so uncertain as to justify a “purposive” interpretation and to attribute a different and broader normative content to the concept of subordination. It seems preferable to adopt a universalistic approach in which protections can be selectively extended to the whole world of labour, starting from subordination but going beyond subordination, and declined according to the specific needs of social protection expressed and the material conditions in which the work (without adjectives) is performed. In conclusion, it is necessary that the labour law continues to protect dependent work possibly more than before, but at the same time, it is necessary a movement beyond subordination, using the techniques of selective universalism. Notions such as economic dependence, personal labour relations, hetero-organisation are not alternative criteria to subordination, but criteria that help labour law to recover its strength and justification, from a legal and moral point of view.