POSSESSION

■ It differs from ownerhship since it is a «factual» (and not

«legal») situation

■ Two requisites: corpus possessionis (holding the thing) and

animus possidendi (intention to possess). If no animus ->
custody (detenzione)

[ Adverse possession (usucapione) ]

 TWO IMPORTANT RULES ON
POSSESSION
■ «Possession is nine tenths of the law» (art. 1153 c.c.) -> if a
person to whom goods are sold by another person who is not
their owner acquires ownerhsip through possession, provided
that the buyer acted in good faith and had a suitable title;
■ In case of several sales of the same good, the person who
acquired possession of the property in good faith becomes the
owner even if its title is of later date (art. 1155 c.c.).
 SECOND PART OF OUR
PROGRAMME
Selected Natural and legal personality. Associations and foundations

civil law Property and real rights. Ownership

topics:
Contracts: physiological and pathological aspects

Obligations: sources and performance

Family and general principles of succession law

 CONTRACTS

■ General category -> «legal act»

Unilateral (testament) or bi- or pluri-lateral (contract)

DEFINITION
OF
CONTRACT
Art. 1321 c.c.:
agreement between
two or more parties
to create, regulate
or extinguish an
economic legal
relationship
between them,
 EFFECTS

■ Real effects -> transfer of property

■ Personal effects -> create obligations

(e.g sale)

BUT we have the «consensual principle» -> consent is sufficient

(delivery is a consequential obligation)
 MULTIPLE SALES

■ Movable assets: «Possession is nine

tenths of the law»

■ Immovable assets and real estate:

the one who prevails is not who first
acquired bona fide possession, but
who first gave public notice of its
purchase by means of transcription
NO TYPICALITY
Differently from real rights -> typical and atypical
contracts
 ESSENTIAL ELEMENTS OF
CONTRACTS
■ Art. 1325 c.c.

1) Agreement of the parties (the person who made the offer has
knowledge of the other party’s acceptance)
2) Cause (objective reason of the contract; it differs from
motives)
3) Object (content of the contract; it must be: - possible; -
lawful; - ascertained or ascertainable)
4) Form (freedom of form with exceptions)
NON-ESSENTIAL ELEMENTS OF
THE CONCTRACT
■ Term: future and certain
■ Condition: future and uncertain

[ Initial term/condition precedent vs final term/condition

subsequent ]
 INVALIDITY OF THE CONTRACT

■ VOID: interest of general application (e.g., absence of one of

the essential elements)
■ VOIDABLE: interest of only one of the parties
[i) person lacking capacity; ii) contract in which consent is
vitiated: a) mistake; b) fraud; c) duress]
 VOLUNTARY REPRESENTATION
■ A contract concluded by a representative in the name and in
the interest of the principal, within the limits of the authority
conferred, is directly enforceable vis-à-vis the principal (art.
1388 c.c.)

Power of attorney (procura)

 UNFAIR TERMS AND CLAUSES
REINFORCING TIES
■ Parties are not always on the same level in terms of economic
strength or bargaining power

■ Right to know general conditions (artt. 1341-42 c.c.)

■ Consumer Protection Code (D.Lgs. N. 206/2005)

 INTERPRETATION OF CONTRACTS
How to resolve ambiguities and contradictions?

1) «Subjective» criterion (intention of the parties)

2) Good faith (art. 1366 c.c.)

3) «Objective» criterion (e.g. when in doubt, clauses must be

interpreted in such a way that gives them some effects rather than
none; e.g. if more than one meaning, the most appropriate to the nature
and object of the contract)
SOME «TYPICAL» CONTRACTS (I)

■ SALE: a person (seller) transfers to the other (purchaser) the

onwerhsip of a real right against the payment of a sum of money
(price)
■ EXCHANGE: thing-thing, rather than thing-price
■ GIFT: no price
■ CONTRACT FOR WORKS AND SERVICES: a person (the
contractor) undertakes, organizing the necessary means and
operating at its own risk, the performance of works and services for
the benefit of the other (the client) in return for money
 SOME «TYPICAL» CONTRACTS (I)

■ LEASE: a person (the lessor) grants another party (the lessee)

the right to enjoy the use of real or personal property for a
given time and specific consideration
■ RENTAL: when the asset produces things
■ FREE LOAN OF PROPERTY: no consideration
■ MANDATE: one party (representative) undertakes to perform
one or more legal acts on behalf of the other (principal)
 SECOND PART OF OUR
PROGRAMME
Selected Natural and legal personality. Associations and foundations

civil law Property and real rights. Ownership

topics:
Contracts: physiological and pathological aspects

Obligations: sources and performance

Family and general principles of succession law

FAMILY AND GENERAL PRINCIPLES OF
SUCCESSION LAW
 FAMILY:
CONSTITUTIONAL PRINCIPLES (I)
ART. 29 COST.

■ The Republic recognises the rights of the family as a natural

society founded on marriage.
Marriage is based on the moral and legal equality of the
spouses within the limits laid down by law to guarantee the
unity of the family.
 FAMILY:
CONSTITUTIONAL PRINCIPLES (II)
Art. 30
■ It is the duty and right of parents to support, raise and educate
their children, even if born out of wedlock.
In the case of incapacity of the parents, the law provides for the
fulfilment of their duties.
■ The law ensures such legal and social protection measures as
are compatible with the rights of the members of the legitimate
family to any children born out of wedlock.
The law shall establish rules and constraints for the
determination of paternity.
 CIVIL CODE PRINCIPLES
(ARTS 143 FF. C.C.)
■ Marriage implies a mutual obligation to be faithful, bring up and educate
children

■ By marriage, they acquire the same rights and assume the same duties

■ Both spouses are required to work so as to contribute to the needs of the family

■ Obligation to maintain, educate and morally assist their children

 CIVIL UNIONS

■ ARTICLES 2 AND 3 OF THE CONSTITUTION

■ LAW NO. 76/2016

■ NO OBLIGATION OF FIDELITY
 MARITAL PROPERTY REGIMES
■ COMMUNITY PROPERTY: property acquired after marriage – even though
separately – becomes the property of both spouses on an equal basis (with some
exceptions: e.g., prooperty acquired prior to marriage; strictly personal assets;
property inherited by or gifted to the spouse etc.)

■ On the other hand, it is not possible for a spouse to separately transfer his/her
share of co-ownership of an asset

■ The other regime is PROPERTY SEPARATION

■ AGREED COMMUNITY PROPERTY REGIME

 SUCCESSION LAW:
CONSTITUTIONAL PRINCIPLES
ART. 42 COST.

■ Property is public or private. Economic assets may belong to the State, to public bodies
or to private persons. Private property is recognised and guaranteed by the law, which
prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social
function and make it accessible to all.
■ In the cases provided for by the law and with provisions for compensation, private
property may be expropriated for reasons of general interest.
The law establishes the regulations and limits of legitimate and testamentary
inheritance and the rights of the State in matters of inheritance.
SUCCESSION LAW: RATIONES

1) PREVENTING ASSETS FROM BEING ABANDONED

2) DEBTS TO BE HONOURED

3) NATIONAL ECONOMY INTEREST

[?]
 TYPES OF SUCCESSION

■ UNIVERSAL: all or part of the deceased’s assets -> HEIR

■ PARTICULAR: one or more of the deceased’s specfic assets

-> LEGATEE

DIFFERENCES
 TESTATE SUCCESSION

WILL

Features:
- Personality
- Form (olograph will; public will; secret will)
- Revocability (prohibition of succession agreements)

- Limits of will and «family pact»

 INTESTATE SUCCESSION

LAW

Spouse, descendants, ascendants, other relatives up to the sixth

grade and finally the State
 «LEGAL RIGHT SHARE» AND
«FORCED HEIRS»
LIMIT TO TESTATE AND INTESTATE SUCCESSION

Spouse, children and, in absence of the latter, the ascendants of

the testator
 HOW TO CALCULATE IT

■ RELICTUM – DEBTS + DONATUM

■ ACTION FOR REDUCTION (within ten years and it cannot

be waived)