chapters

• The aim of private law is the resolution of conflicts and the prevention of conflicts.
• Private law includes relations between private persons and it includes civil law (applied when the parties are on the same level) and commercial law.
• Public law is applied when one of the parties has a supremacy on the other.
• Private law is about economic rights (things, contracts, obligations, damages), economic activities, natural and legal persons, family law and succession upon death.
• The legal rules prescribe a human conduct, they are always general and abstract and their violation is generally sanctioned.
• The general and abstract legal rule must be applied to the single real case, known as fattispecie.
• The civil code was issued in 1942 (c.c. or C.C.), on the model of the French Civil Code 1804 and they were "preliminary provisions on the law in general".
• The French Civil Code is important for all the western countries because when the code was enactive France was very powerful and invaded half of Europe and with the invasions they brought their laws in the other countries.
• The centralised model of judicial review is opposed to the American model.
• The Constitution of the Republic is the primary source of Italian law promulgated on December 27th, 1947 and became effective on January 1st, 1948.
• The theory of law states that the sources of Italian law can be found in the Italian Constitution of the Republic.
• According to the criterion of conforming interpretation, interpretation must be carried out in accordance with the Constitution.
• The civil code has six "books": Persons, Succession upon death, Property, Obligations, Work, Protection of rights.
• The primary sources of law in turn regulate inferior or so-called secondary sources.
• The Constitution is split into two parts: Part 1 sets forth constitutional rights and duties and divides them into four categories: Civil rights, Ethical and social relations, Economic relations (right of property and freedom of enterprise), Political rights.
• The Constitutional Assembly followed the Austrian model of constitutional adjudication reserved to special judges.
• The Italian Constitutional Court was established in 1956.
• Conforming interpretation applies to the interpretation of General causes and general principles contained in civil code and legislation on private law.
• The first articles of the Italian Constitution declare the fundamental principles of Italian Republic.
• Good faith, public morals, public order, fairness are linked to the actual context.
• In the Italian constitutional system, the review can be only after and not before the issue of the law.
• The interpretation of statutes can be restrictive/extensive, authentic, judicial, administrative, doctrinal.
• The Constitutional court has the power to declare a statute unconstitutional only in the course of a judicial proceeding and only when the application of this statute is relevant to the decision, so-called incidental action.
• Part 2 describes the organization of the republic.
• This solution is often the consequence of a selection of one of the possible solutions.
• It can then become an argument discussed by a scholar whose text is re-transplanted and becomes part of the opinion of a judge.
• Historically, all legal systems have witnessed a sort of "competition" between different formants to impose each one's solution.
• Each formant often proposes a different solution to solve the same case and no single one of these solutions is the "right one" compared to the other.
• Comparatist scholars aim to find out whether the rules suggested by each formant are coherent with the others and control whether the rules that operate in practice in the legal system are consistent with the theoretical statements.
• Some formants can prevail in some fields of law, for example, judicial decisions in tort law.
• One of these is the "mentality" of legal professionals.
• The theory of formants also helps identifying which formant is better to govern a certain area of law.
• The theory through comparisons between different legal systems shows how a rule initially created by a formant can be transplanted into another text.
• Comparison between different legal systems shows that similar premises may lead to opposite rules and identical rules are explained by opposite premises.
• There are also hidden formants which Sacco calls "cryptotypes" which contribute to the shaping of a legal systems as well.
• The theory reveals that most of the time legal reasoning is not as "logical" as it pretends to be: legal reasoning often makes use of syllogism to derive the legal solution, pretending that the consequences stem directly from the premise.
• The theory shows that most of the time the premise is the fruit of a selection made by the person interpreting the law.
• This means that the premise may actually hide another argument, the one that actually forms the basis for the final conclusion.
• In the civil code there are also some sectorial codes that at the beginning did not exist but they were created with the change in society: Consumers code, Insurance code, Privacy code, Tourism code.
• The sources of private law can be: National law sources, International law sources.