Codice Civile

From Max-EuP 2012

by Filippo Ranieri

1. History of the code

The current Italian civil code came into effect during World War II. Its history extends back several decades. The civil code of 1865 for the then newly established Regno d’Italia developed Italian private law legislation to a level which remained mostly unchanged for many decades. The code of 1865 was heavily based upon French law in its structure, language and legal concepts.

Further preparations for a comprehensive reform of Italian civil law did not begin until the end of World War I. They were initiated by the famous Professor of Roman law and private law, Vittorio Scialoja (1856–1933), whose support for a legal harmonization between Italy and France in the field of contract and tort law found favour with his French colleagues. Two commissions were formed in 1917—one in France under the Presidency of Ferdinand Larnaude (1853–1942) and the other in Italy under the leadership of the aforementioned Scialoja—which were able to provide the first results of their discussions as early as 1920. After several years, in 1927, the final draft code of obligations was presented to the public in Italian and French. But the political climate was no longer favourable for such an initiative. Independent of this, preparations for a new, extensive Italian code of private law had already been initiated. Nonetheless, the Italian-French proposal received attention throughout Europe. As regards its modern systematic approach as well as its many novel provisions on the law of enrichment and liability, it considerably influenced contemporary European legal doctrine and served as a seriously considered model for some of the codification projects at that time. The 1942 Italian Codice civile was considerably influenced by this preliminary proposal.

The works on the proposal for a joint Italian and French law of obligations occurred at the same time as the initiatives that were being adopted in Italy for a comprehensive reform of the existing civil law. The suggestion for a new civil code had already been made in 1921 and induced the government to summon a commission ‘per gli opportune emendamenti al Codice civile e per la compilazione e la pubblicazione di nuovi codici’ in 1923. This marked the beginning of the royal commission’s works on the reform of the civil code (1924–31), which did not end until 18 years later when the new code was adopted. A complete proposal for a new commercial law code had already been finished in 1936.

The work on the codification underwent a new revival when the then Italian government appointed Dino Grandi (1885–1988), the Minister of Justice, to be personally in charge of the project. Only months after his appointment, individual commissions in the ministry of justice started working (November 1939–April 1940). The first complete proposals of individual parts of the planned civil code were presented in May/June 1940. In this period of work on the code, political pressure arose to include principles of the Fascist Corporate State in the new civil code. The final decision to do without an independent commercial code and instead to include all of the commercial law material within a fourth part Delle obbligazioni and a fifth part Del lavoro (September 1940) dates from this period. This also brought to an end the academic debate on the unification of civil and commercial law following the example of the Swiss civil code, which Cesare Vivante (1855–1944) had initiated and in which Mario Rotondi (1900–84) and Alberto Asquini (1889–1972) had played an important role (Code unique). The most notable participators in the debate were Professor Filippo Vassalli (1885–1955) and Professor Alberto Asquini. In December 1940 a first proposal was presented for the later fifth part Del lavoro. At the beginning of 1941 the final versions of the later third part Della proprietà and the later sixth part Della tutela dei diritti were completed. The fourth part on the law of contract and delict was edited for the last time between April and July 1941 with the Italian civil lawyer Giuseppe Osti (1885–1963) being highly influential. The individual parts of the new codification were published one by one after their final revision. In the following months, the transitional provisions and the ministerial motivation were made so that the entire codification could be adopted as early as spring 1942.

2. Structure and content

Even from its layout, the 1942 Codice civile represents a compromise between different academic and legislative traditions. Faithful to the Piedmont legal tradition, the old Italian civil code of 1865 still copied the layout and order of its content from the French Code civil in every detail. In the decades after World War I, a broad and very controversial debate took place in Italian academia regarding whether and to what extent the example of the German civil code (Bürgerliches Gesetzbuch (BGB)), in particular its general part (Allgemeiner Teil) and its juridical act doctrine, should be copied into the new Italian civil code. The Italian civil law scholars at that time were almost exclusively focused on the example set by the later German pandectists. Thus, it is not surprising that a majority of the then academic world was in favour of a codification of the juridical-act doctrine. Although being one of the reasons why the 1927 Franco-Italian Draft failed in Italy, such opinions could not prevail. A significant investigation into legal history regarding the specific influences in the final stages of the codification process is still missing. Nevertheless, the scepticism of the then first President of the Italian Supreme Court, Mariano d’Amelio (1871–1943) seems to have been decisive. As in the Swiss Code of Obligations (OR) of 1912, it was the contract and not the concept of juridical act which formed the core of the new code.

In its layout the new code is partly modelled on the French Code civil. Once again, one can recognize a preliminary title, Delle preleggi, where general interpretation principles are anchored. The layout of the first three parts is rather traditional. The first part Delle persone e della famiglia (Arts 1–455) contains the legal rules on capacity, the rights of natural and legal persons and family law in its entirety. The second part Delle successioni (Arts 456–809) contains the rules on legal and testamentary succession upon death as well as the rules governing contracts of donation. The third part Della proprieta (Arts 810–1172) contains the legal rules on ownership and other such property rights. In its subsequent parts the civil code distances itself from the French model. Thus the fourth part, Delle obbligazioni (Arts 1173–2059), covers the entire law of contract and delict. The part begins with general rules regarding contractual and tortious obligations (Arts 1173–1320). The rules of general contract law follow (Arts 1321–1469). Articles 1470 to 1986 are dedicated to specific contracts. Individual rules apply to unilateral promises (Title IV, Delle promesse unilaterali, Arts 1987–1991), securities (Title V, Arts 1992–2027), management of another’s affairs without a mandate (negotiorum gestio) (Arts 2028–2032), condictio indebiti (Title VII, Del pagamento dell’indebito, Arts 2033–2040) and the law of unjustified enrichment (Arts 2041–2042). The fourth part concludes with the law of delict (Title IX, Dei fatti illeciti, Arts 2043–2059). Totally new in relation to the tradition of the time is the fifth part Del lavoro, in which commercial law is regulated together with aspects of labour law. Titles II–IV (Arts 2082–2246) can be mentioned here, which are dedicated to labour law. Company law also occupies a central position (Title V, Delle società, Arts 2247–2510) as do the subsequent rules which are dedicated to the specific forms of the organization of enterprises. The enterprise is especially dealt with in Title VIII, Dell’azienda (Arts 2555–2574). Rules on industrial property law (Title IX, Arts 2575–2594), competition law and groups of companies (Arts 2595–2642) conclude the part. As mentioned above, the entire content of the already completed commercial code proposal was allocated to the fourth and fifth part. Rules originating in commercial law, for example, regarding the formation of contracts or the requirement to make a complaint in case of a defect in sales law, were adopted into general contract law. The sixth and final part, Della tutela dei diritti, contains traditional rules from the old civil code of 1865. Thus, in this part one can find enrolment in the land register, Della transcrizione (Title I, Arts 2643–2696) and the rules on evidence (Title II, Arts 2697–2739), which according to French tradition are contained in the civil code and not in the Codice di procedura civile (code on civil procedure). Title III Della responsabilità patrimoniale is dedicated to rules on securities in rem and enforcement law. The final Title V, Della prescrizione (Arts 2934–2969) states rules on prescription.

3. Partial reforms and new legislation

Immediately after the collapse of the fascist regime and the months of transition between the end of the monarchy and the foundation of the Republic in June 1946, a discussion arose, led acrimoniously in part, about the assumed fascist character of the new code. Some statements even demanded the immediate abrogation of the entire new code. However, in the end, these claims did not prevail. The vast majority of academia and practice was satisfied with some more aesthetic and linguistic changes to the text. The references to the corporate, economic and social order which had been introduced in abundance, especially into the fifth part, were erased and mostly left un-replaced. Apart from that, the code remained valid and largely untouched. Only at the end of the 1950s did the Italian legislator and the decisions of the Italian Corte constituzionale (Constitutional Court) begin to intervene in a small but increasingly extensive way into the code’s substance. For example, the jurisprudence of the Italian Constitutional Court declared several provisions of the Italian succession law to be unconstitutional and, as a consequence of this, either inapplicable or applicable only with a significantly reduced range (see Corte constituzionale, 4 July 1979, No 55 and Corte constituzionale, 12 April 1990, No 184 on the law of succession regarding illegitimate children). Moreover, the Court gave decisions concerning numerous further provisions, for instance in the field of labour contracts (Corte constituzionale, 17 February 1969, No 16; Corte constituzionale, 4 May 1972, No 85) or of tortious liability (Corte constituzionale, 29 December 1972, No 205).

In the last three decades, a vast amount of isolated acts of legislation have developed outside of the civil code. This is by no means beneficial for the coherence and clarity of Italian private law. The whole field of family, marriage, and succession law was re-regulated from scratch in 1975 (Act of 19 May 1975, No 151). Essential sections of the original version of the first and second parts have thus been redrafted. The Act of 21 April 1983, No 123 containing rules on the acquisition and forfeiture of citizenship, as well as the Act of 25 March 1985, No 121 which introduces amendments and revisions of the rules on concordat marriage (canonical matrimony), are two acts worthy of mention. In 1970 (Act of 1 December 1970, No 898), divorce was also introduced to Italian law. Thirteen years later, the rules on the law of adoption in Title VIII of the first part were redrafted (Act of 4 May 1983, No 184). During the 1970s and 1980s, a large amount of legislation was introduced in the fields of construction law, real estate property and tenancy law. Especially concerning the latter field of law, there existed until the beginning of the 1990s specific legislation that was immense, non-transparent and partly overlapping. Equally intense were the interventions into the fifth part Del lavoro. Numerous rules were adopted in the field of individual labour law in the 1970s and 1980s. Taking these into consideration, the codified rules on employment contracts today can partly be seen as obsolete. Finally, the fundamental reform of company law in 2002 has to be mentioned.

Since the end of the 1980s, further substantial legislative interventions took place due to the European directives on consumer protection law (consumers and consumer protection law). It began with the decree of 24 May 1988, No 224 on the implementation of the product liability Directive. At that time, the Italian legislature opted for the path of specific legislation outside the codification. Almost all of the directives were implemented by means of specific acts. Directive 93/13 on unfair terms and Directive 99/44 on the sale of consumer goods and associated guarantees were, however, included in the code by adding new articles into the structure of the old text. Yet, in the meantime, the Italian legislature has dismissed this strategy. All new consumer law provisions included into the Codice civile have recently been recompiled in a separate codification of consumer protection law. The Codice del consumo was adopted by legal decree No 206 in 2005 and since then has complemented the civil code.

Even though interventions to the text of the 1942 code in the field of contract law have been less numerous, they have been no less significant. In this context, one should mention an essential reform in the field of suretyship in 1992, when the Italian legislature amended and supplemented Art 1938 following foreign examples.

4. Key principles of the code

Despite the major influence of German legal literature on contemporary Italian scholarship, Italy’s traditional loyalty to French law can easily be traced in the new code of 1942. As mentioned above, the Italian legislator opted against a general part. The term negozio giuridico (Rechtsgeschäft, juridical act), which is subject to a vast amount of Italian literature, is not included in the code’s vocabulary. Only the contract and its formation (contract (formation)) are regulated (Arts 1321 ff). The doctrine of declaration of intention, in contrast, has not been codified. Following the example of Swiss law (Art 7 Swiss Code of Obligations (OR)) provisions concerning contracts are declared as also being applicable to unilateral declarations of intention (Arts 1334, 1324). The proximity to the French example is obvious in Art 1325 concerning the requisiti del contratto (contract requirements), in which causa del contratto and oggetto del contratto mark the historical connection to Art 1108 Code civil. Article 1328 according to which an offer is revocable until the conclusion of the contract can be cited as another example. A revocation at an inappropriate time, however, creates an obligation to compensate the negative interest.

Totally new at that time were the codification of the doctrine of liability due to culpa in contrahendo (Arts 1337–1338) and two provisions (Arts 1341–1342) concerning the conclusion of contracts using standard contract terms and standard form contracts. However, the codification limits itself to a formal control of the inclusion of the standard contract terms into the contract and ignores the problem of controlling their content. Later consumer law legislation regarding unfair terms in consumer contracts has in this respect considerably overtaken the 1942 code.

The rules on non-performance occupy an intermediate position between the French and the German legal traditions. While even the code of 1865 had not been a verbatim copy of the French provisions, a totally new conceptualization entered Italian law at the end of the 19th century, as a result of the systematic adoption of contemporary German legal thought. An essay by Giuseppe Osti (1885–1963), published in 1918, was of considerable relevance. It introduced the pandectist doctrine of impossibility, as embedded in the German BGB, into Italian law. His concept of contractual liability, subsequently adopted by the Italian courts, considerably shaped the 1942 Italian civil code. As previously mentioned, Giuseppe Osti participated in the work on the draft.

Also, in the field of the law of delict, the Italian legislature of 1942 did not strictly follow the example set by the German BGB. In this case, the Swiss Code of Obligations (OR) (Art 41 OR) seems to have been the leading model. The wording of Art 2043, the general provision of delictual liability, resembles Art 1382 Code civil. However, while its predecessor, Art 1151 in the code of 1865, had still been a verbatim translation of the French provision the following essential addition was made to Art 2043 Codice civile in 1942: Damage has to be ingiusto. In this way, reference was made for the first time to the unlawfulness of the damage in Italian liability law. Up until a few decades ago, Italian literature and jurisprudence considered this element—following the example of § 823(1) BGB—as constituting a legal recognition of a numerus clausus of absolute rights protected by the law of delict. Only three decades ago did Italian jurisprudence finally abandon this restrictive interpretation. Today, therefore, it even recognizes the recoverability of pure economic loss to an extent which may cause concern. Exactly like the German BGB and the tradition of German Pandektensystem, the 1942 code considerably limits the recoverability of immaterial loss (Art 2059). Under pressure exerted by the jurisprudence of the lower courts and also under the auspices of an interpretation of the law of delict (law of torts/ delict) guided by the constitution, the Italian Supreme Court in private law matters has, however, substantially loosened these strict requirements in recent years. Purely immaterial damages are nowadays recognized to a large extent within the scope of the so-called danno biologico and the danno esistenziale. Following the examples of Art 58 of the Swiss civil code and Art 1384 of the French Code civil, the 1942 code includes further general clauses which impose strict liability for risks emanating from objects (Art 2050) and for dangerous acts (Art 2051).

The close connection between the Italian civil code and the French Code civil is moreover confirmed by the provisions on transfer of ownership (transfer of title) which are based on the consensual principle. This was already true as regards the old code of 1865 (Art 710 and Art 1125). The legislator has, in this respect, intentionally decided to keep the traditional solutions concerning the contratto con effetti reali (Art 922 and Art 1376). The same can be said for the transfer of real estate property. Also in this regard, the legislature opted in favour of retaining the French system of trascrizione (Arts 2643–2681).

Literature

Raffaele Teti, Codice civile e regime fascista: Sull’unificazione del diritto privato (1990); Michele Sesta (ed), Per i cinquant’anni del codice civile, vols I–II (1993); Giorgio Cian, ‘50 Jahre italienischer codice civile’ (1993) 1 ZEuP 120; Raffaele Teti, ‘Documenti d’archivio sul Libro I. del codice civile’ [1998] Riv Dir Civ, vol I, 355; Christian Resch, Das italienische Privatrecht im Spannungsfeld von Code civil und BGB am Beispiel der Entwicklung des Leistungsstörungsrechts (2001); Gian Battista Ferri, Filippo Vassalli o il diritto civile come opera d’arte (2002); Nicola Rondinone, Storia inedita della codificazione civile (2003); Guido Alpa, ‘Le code civil et l’Italie’ [2005] Revue internationale de droit comparé 571; Guido Alpa, Tradition and Europeanization in Italian Law (2005); Guido Alpa and Vincenzo Zeno-Zencovich, Italian Private Law (2007); Filippo Ranieri, Europäisches Obligationenrecht (3rd edn, 2009), 54, 276 ff, 333 ff, 498 ff, 701 ff, 1381 ff, 1442 ff, 1604 ff, 1666 ff, 1709 ff.

Sources

German Civil Code—BGB: Reichsgesetzblatt 1896, 195, No 21 (24 August 1896); Italian Civil Code—Codice civile (1865): Regio decreto 25 June 1865, No 2358; Gazzetta ufficiale 1865; Italian Civil Code—Codice civile (1942): Regio decreto 16 March 1942, No 262; Gazzetta ufficiale No 79, 4 April 1942; Susanna Beltramo, Giovanni E Longo, John Harry Merryman (eds), The Italian Civil Code and Complementary Legislation (1991); Commissione reale per la Riforma dei Codici—Commission Française d’Etudes de L’Union Legislative entre les Nations Alliées et Amies (eds), Franco-Italian Draft of a law of obligations and contracts (1927/1928); French Civil Code—Code civil: Loi du 30 Ventôse XII (19 März 1804), Bulletin des Lois, 3. Série, Tome 9, No 354; Swiss Law of Obligations—Schweizerisches OR: Schweizerisches Bundesblatt, 63th year, 2nd vol, No 14, 355–634 (5 April 1911).

Retrieved from Codice Civile – Max-EuP 2012 on 06 October 2022.

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