CIVIL LAW

(Italian Private Law)

Italian Law in English Talking about Italian law in English means to use the language of a different juridical system. English law is different from Italian law: Different sources of law, Different partitions, Different concepts, Different rules Examples: consideration, causa del contratto. TRANSLATION PROBLEMS: Cases where translation is impossible. Cases where it is apparently possible: contratto contract. Necessity of a comparative approach Specific words in original language and explanation in English. For example: causa. Diritto Oggettivo. Diritto oggettivo is the law. Law is a set of rules governing certain relations in a certain place. Example: Italian labour law is the set of rules governing labour relations in Italy. The traditional approach: law rule is settled by the authority and must be respected. If not, a judge will condamn. Recent opinions: the lex mercatoria. Private Law Different from Public Law, Private law is considered as a set of rules governing relations where parties are on the same level, with the same powers. PRIVATE LAW PARTITION: civil law: family, property, contracts, torts. commercial law: commercial activities, societies, commercial contracts . Sources of Private Law in Italy Civil Code and Related Statutes From statute articles to rules of law. Cases The role of judges and authors in Italy. Doctrine The Structure of Civil Code. Nearly 3.000 articles divided in 6 books concerning Family (1) Successions (2) Property (3) Obligations and contracts (4) Commercial activities (5) Protection of the rights (6) RELATED STATUTES: Related statutes govern specific aspects of items considered in the code. The example of sale contract: general sale in the civil code - International sale of goods in a statute. PRIVATE LAW RELATION: A relation between certain parties giving them certain powers and obligations and having as object certain things. We will study: - the actors - their position (powers and obligations)

the facts producing, modifying and destroying private law relation

Actors. In the world of private law we meet: - natural people - collective beings like associations, committees, foundations and companies, made by two or more people Natural Person Art. 1 cc: Legal capacity is acquired at birth. Legal capacity is the capacity to have rights and obligations Art. 2 cc: The age of majority is fixed at termination of the 18th year. On reaching majority one acquires the capacity to perform all acts except those for which a different age is prescribed. When a person becomes 18 years old, he can perform every act of private law if he is not mentally ill. EMANCIPATION: Art. 84: The Tribunal can permit for serious reason the marriage of a person over 16 years old. Art. 390: The minor is emancipated by operation of law on marriage. Art. 392: The spouse is the curator of a minor married to a person of age. If both spouses are minors, curator will be a parent. EMANCIPATION EFFECTS: The emancipated person can perform alone only acts of ordinary administration, in other words those acts that do not vary his asset. To perform an act of extraordinary administration, like a sell, he needs the assistance ad approving of the curator. Extraordinary administration acts performed by an emancipated person without the curators approving are voidable. INTERDICTION: Art. 414 cc: A person who has attained majority and who is in condition of habitual infirmity that makes him not able to look after his interests, shall be interdicted. Interdiction cancels the capacity to perform every act of private law. Interdiction is given by a judge sentence. The judge also indicates a tutor. The proceeding can be instituted by a parent or by the public attorney. A tutor will administer the assets of the interdicted person. Acts performed by an interdicted person are voidable. DISABILITY: Art. 415: A person who has attained majority and who is mentally infirm, whose condition is not so serious as to justify interdiction, can be declared disabled. The same measure can be taken towards a person who, through prodigality or abuse of alcoholic beverages or drugs, exposes himself or his family to serious financial prejudice. Disability is given by a judge sentence. The judge also indicates the curator. The proceeding can be instituted by a parent or by the public attorney. The disabled person can perform alone only acts of ordinary administration, in other words those acts that do not vary his assets. To perform an act of extraordinary administration, like a sell, he needs the assistance ad approving of the curator. Extraordinary administration acts performed by an disabled person without the curators approving are voidable. NATURAL INCAPACITY: Art. 428: An act performed by a person who, although not interdicted, is proved to have been for any reason, even contingent, not able to understand or intend at the time the act was performed, can be voided on request of such person, if such act produces serious prejudice to the performer. COMMON PROBLEMS: Every collective being has: Governance (who and how can govern it) Representation (who can validly speak for it) Autonomy (how long it is a different being from its members from a patrimonial point of view)

Associazione. Associazione is a collective being with no profit purposes: to amuse, to increase culture, to make sport, etc. It is based upon a contract, called foundation act, which contain the name of the institution, description of its purposes, its assets, legal address, rules concerning its organization and management FOUNDING ACT: Association is based upon a contract, called founding act, which contains: the name of the institution the description of its purposes, its assets, Its legal address, rules concerning its organization and management Rights and obligations of members Criteria of their admission Rules about dissolution and disposition of its assets MEETING OF MEMBERS: it is called at least once a year by the administrators. Resolution are adopted by a majority of votes with the presence of at least one-half of the members. It approves the balance sheet. It approves association contract modification. BOARD OF ADMINISTRATORS: They are selected by the meeting of members, They govern the life of association, They make the project of balance sheet. One or more admnistrators has the power of representation Comitato. Composed by a group of people. It has the purpose to collect money for a public utility end. Personalit Giuridica Associazione and Comitato can ask to have the personalit giuridica P.A. Gives personalit giuridica that makes the being the only subject liable for its obligations with third parties. LACKING OF PERSONALIT GIURIDICA: Art. 38: Third people can enforce their rights against the common assets of the association for obligations undertaken by the person representing it. People who have acted in the name and for the account of the association are also personally liable in solido for such obligations. Art. 41: If the comitato has not the personalit giuridica, its members are personally liable in solido for the obligations undertaken. Foundation (Fondazione) Assets given or left for a certain purpose. A board of administrators govern it. (i.e. Borse di studio). Governed situations. Rights. (diritto) is a situation which gives the owner some faculties. We distinguish: Diritti assoluti (personal rights, rights on a thing). They can be opposed to everybody. (i.e. ownership. If Im an owner of a thing I'm the only one I can use the thing and oppose everybody my right) Personality rights. Physical integrity (It's not possible to make a contract having as an object physical integrity). Name (I'm the only one to be allowed to use my name) Person's likeness (I have the right to use as I want my personal likeness. In a case a political party use a person's likeness without his permission, maybe the person is not

of the same political ideas and can ask to remove the advertise) Privacy (Right of keep for himself his personal data) Violation consequences: damages repair. Diritti Reali Absolute rights related to things Immovable (Land, sources, rivers, buildings) Movable Fruits (i.e. Interests on a sum of money) OWNERSHIP. (diritto di propriet) The Owner has the right to enjoy and dispose of things fully and exclusively, within the limits and with the observance of the duties established by the legal order. Enjoy means faculty of using and of becoming the owner of the fruits (naturalm things produced by the principal thing, and civilian, the compensation for the using by another person, the interest). Disposing means selling or making a gift. PROPERTY LIMITATION. The owner cannot perform acts that have no other purpose than that of harming or causing annoyance to others. Object of a property right can be a moveable or an immoveable good. The largest part of rules about property are established for property of immoveable. A very important aspect is the faculty of building. Other Diritti Reali Usufrutto: The right to use, during a certain period of time: the usufruttario can not change the economic destination of the thing (uso and abitazione). (i.e. a man is the owner of the house and lives with his wife and son. It is possible that the man says in the testament that the usufrutto of the house goes to the wife, and the naked property/nuda prorpriet to the son. So after his death the wife can go living in the house, than when she dies the son becomes the owner of the house). Servit prediale: a burden imposed on land for the utility of other land belonging to a different owner, like a passing servit. Servit can be imposed. We speak about FONDO SERVENTE (The land where the other person makes something. i.e. Passing), FONDO DOMINANTE (The land whose owner can make something on the other land. i.e. Allow passing). The Servit follows the land. Superficie: right to build and maintain a building whose owner becomes the subject having the right of superficie. Enfiteusi: it concerns land and gives to the tenant the same right to exploit as he would be the owner. The tenant has the obligation to improve the land and to pay the granter a periodic rent. After the period of Enfiteusi the tenant can become the full owner of the land. Usocapione: To have uso capione it is necessary that a person uses the thing as it would be the Owner (that is called possessor). After 20 years he becomes full owner. If I use as Usufruttario I become Usufruttario. Diritti relativi (or di credito). They can be opposed only to the debtor (only one person). The party who has the obligation to perform is called debtor. The owner of the relative right can ask only the debtor. Obligation. (Obbligazione) A relation between two parties on the basis which one of them called creditor, has the right to pretend from the other one, called debtor, a certain conduct. Conduct must be economic valuable but it can also correspond to a non patrimonial creditor's interest. It can be to give a thing or sum of money, to make a service, not to do something, to leave that another person uses a thing belonging to the debtor. Marriage is not a contract because it doesn't make any obligation. We have obbligazione only when the conduct of the debtor can be translated in a sum of money.

SOURCES OF OBLIGATIONS: Art. 1173: Obligations arise from contracts, torts, or any other acts or facts which are able to produce obligation under the fucking law. (i.e. NEGOTIOURM GESTIUM aka quando se spacca er tubo der vicino e te chiami er idrauligo ma paga lo stronzo) PERFORMANCE OF OBLIGATIONS: The code establishes rules about the performance of obligations saying who, when where and how. Rules applicable only if there is not a different will of the parties. WHO: Conforming the general rule, obligation must be fulfilled by the debtort but... (art. 1180) the obligation can be performed by a third person, even against the will of the creditor if the latter ha so interest in having the debtor perform the obligations personally. However, the creditor can refuse the performance offered by a third person, if the debtor has communicated to him his objection. WHERE: Performing place depends on obligation object. Obligation to deliver certain thing must be performed in the place where the thing was when obligation arose. Obligations to pay a sum of money shall be performed at creditor's domicile. Other obligations shall be performed at debtor's domicile.t WHEN: (art. 1183) If the time for performance is not specified, the creditor can demand it immediately. HOW: (Art. 1176) In performing the obligation the debtor shall observe the diligence of a good family father. If he is a professional, diligence shall be evaluated with respect to the nature of that activity. TO WHOM: The payment must be made to the creditor or to his representative or to the person indicated by the creditor or with the permission of the law or the count to receive it. (art. 1189) The debtor who makes payment to a person who, on the basis of unequivocal circumstances, seems entitled to receive it, is discharged if he proves that he was in good faith. The person who has received payment is required to restore it to the true creditor. PAYMENT: Who owes several debts, can say when he pay which debt he want to satisfy. He cannot pay first the principal. He has to pay first interests NON PERFORMANCE: (art. 1218): Debtor who does not exactly render due performance is liable for damages unless he proves that the non performance or delay was due to impossibility of performance for a cause not imputable to him. Creditor has not the obligation to receive the performance and to give his Ncollaborations. If he does not, the code establishes rules permitting the debtor to make himself free. He will also pay debtor's expenses for the safeguard of the thing. OBLIGATION DI MEZZI E DI RISULTATO: Art. 1176 Art. 1218. In performing the obligation the debtor shall observe the diligence of a good family father. If he is a professional, diligence shall be evaluated with respect to the nature of that activity (obbligazioni di mezzi). Debtor who does not exactly render due performance is liable for damages unless he proves that the non performance or delay was due to impossibility of performance for a cause not imputable to him, DAMAGES: Art. 1223. The measure of damages arising from non performance or delay shall include the loss sustained by the creditor and the lost profits insofar as they are a direct and immediate consequence of the non performance or delay. (danno emergente, lucro cessante). CREDITOR'S NEGLIGENCE: art. 1227: If the creditor's negligence has contributed to cause the damage the compensation is reduced according to the seriousness of the negligence and the extend of the consequences arising from it. Compensation is not due for damages that creditor could have avoided by using ordinary diligence. EXONERATION TERMS: Art. 1229: Any agreement which in advance, excludes or limits the

liability of the debtor for fraud, malice or gross negligence is void. (dolo, grave negligenza, piccola (secondo Virginia) , lieve negligenza). OTHER WAYS OF EXTISINGUISH OBLIGATIONS: Not satisfying: Novazione, Remissione, Compensazione Satisfying: Confusione; Impossibilit. Novazione: Substitution of a new obligation to the old one having different object or a different source for the old one. Privileges, pledges, mortgages of the old obligations are extinguished if the parties do not expressly agree to preserve them for the new obligation. i.e. Restitution plan = Piano di rientro (first the client has an obligation called MUTUO then esticazzi). Remissione: Art. 1236. The declaration of the creditor remitting the debt extinguishes the obligation when it is communicated to the debtor, unless the latter declares within a responsible time that he does not wish to profit of it. Art. 1237: Voluntary restitution by the creditor to the debtor, of the original instrument representing the claim is evidence of remissione. Compensazione: When two people are obliged to each other, both debts are extinguished to the extent of their corresponding amounts. Debts must have as object a sum of money or a quantity of fungible things of the same kind and must be liquidated and collectable. If they are not liquidated but it is possible to do an easy prompt liquidation, the compensation can be declared by the judge. Satisfying: Confusione: art. 1253 When the debtor and creditor become the same person the obligation dies. Impossibilit: Obligation dies when its performance becomes impossible for reason not due to the debtor. Changes of obligation parties: Surrogazione, Assignment, Delegazione, Espromissione, Accollo. Changes of obligation parties (change in creditor). SURROGAZIONE. When there is the substitution of a person who pays at the place of the debtor. Surrogazione can be made: 1. By Creditor, receiving the money 2. By debtor, when he borrows money for payment. 3. By operation of the law and it is the case of a debtor who is bound with others for others. ASSIGNMENT. Creditor can assign his claim, freely o against compensation, even without debtor's consent, except if the claim is a personal one or its transfer is forbidden by law. The law transfer is effective respect to the debtor if he has accepted it or if he has been notified of it (Cessione del credito). Changes of obligation parties (change in debtor). DELEGAZIONE. Delegazione: Debtor assigns to the creditor a new debtor who binds himself to the creditor. The original debtor is not discharged, unless the creditor says expressly that he discharges him. Delegazione di pagamento: Debtor delegates a third person to make payment: Solidariet Sussidiariet Beneficio di preventiva escussione. The relation between the bank (usually the third person) and the debtor is called Rapporto di provvista . If there's delegazione only if the creditor expressly says i discharge the old debtor, the old debtor is discharged. If this not happens delegazione implies two debtors: the old debtor, the third person (usually the bank). The two debtors are liable in solido. The creditor can ask both the payment (solidariet): first to the new debtor (sussidiariet), and if he refuses he can ask the old debtor. It is not enough the new debtor says to refuse, the creditor must also try to go on with an execution (legal proceeding in order to obtain a condemn for the new

debtor), and only if the legal proceeding says the new debtor cannot pay, he can move on to the old debtor. ESPROMISSIONE. When a third person assumes the obligation toward the creditor. He's bound in solido with the original debtor, unless the creditor expressly releases the latter. The third person acts because he's generous (ie. The father and the debtor of the son), and he has an agreement with the creditor. Here again the creditor must speak in order to discharge the fucking original debtor. ACCOLLO. Art. 1273. If the debtor and a third person agree that the latter shall assume the debt of the former, the creditor can adhere to the agreement, making the stipulation. The adhesion of the creditor imports the releases of the original debtor only if this constitutes an express condition of the stipulation or if the creditor expressly releases him. If the debtor is not released, he remains bound in solido with the third person. Judges extend also to espromissione and accollo cumulative the rule established for delegazione: the old debtor's liability becomes sussidiaria, in other words creditor must ask for the payment first to the new debtor and only if this one answers no. In delegazione the agreement is before (rapporto di provvista), here the agreement is between the debtor and the third person, and the creditor is out of the agreement but can adhere to it. The adhesion of the creditor produces the freedom of the original debtor only if the creditor expressly releases him. SPECIFIC KINDS OF OBLIGATIONS: Obbligazioni pecuniarie: Whose object of the payment is a certain sum of money (i.e. obligation to pay a price), The sum does not change even if time passes and the buying power of money (inflation) goes down. This is why we found Contractual term of defense (in order to modify the sum of money). Obbligazioni alternative: Where debtor performs obligation choosing between more conducts. Obbligazioni solidali e parziale: Obligation can have: One creditor and more debtor; solidariet (obbligazione solidale) means that creditor can ask all payment to a debtor; if he pay, he has the right to be refunded by the others. When there are more debtors, solidariet is the applicable rule if the parties do not expressly agree othrewise. More creditors and one debtor: in this case the rule is parziariet (obbligazione parziaria), in other words every creditor can ask to the debtor only the payment if his part. When there are more creditors, parziariet is the applicable rule if the parties do not expressly agree otherwise. The purpose of the rule is that the legislator wants to protect the creditor. The creditor is only one and protected because the risk of non performance is on the many debtors. Possesso. The most relevant situation of fact ruled by the law. Art. 1140. Possesso is the power over a thing that is shown by an activity corresponding to the exercise of ownership or other real right. Possesso needs two elements: power on the thing and animus possidendi, in other words the intention to conduct himself as the person who has the ownership or other diritto reale (i.e. the robber, ladro, it's the possessor but not the owner). Eventually we have two elements: The power on the thing (objective) and the animus possidendi (subjective). It's different from detenzione (where we don't have animus possidendi). Protection. Art. 1168. One who has been violently or by stealth deprived of possesso can, within a year of the loss, sue the taker for recovery of possessor. Art. 1170: One who has been disturbed in possesso of immobile can, within a year of the disturbance, sue for protection of possesso.. Possessore looses against owner, the latter must sue the first. During the proceeding about possesso

is not possible to discuss about property, except if it is urgent. (i.e. The owner of a land makes a wall, the neighbour sue the owner saying he has servit. The judge can sue the other person saying you have not the right to pass. Then the judge verify the person has the right to pass. FIRST the judge verify the situation of possesso, THEN the situation of ownership. Not together. During the proceeding it's possible to discuss about the property only if it's urgent possesso is guaranteed). Consequences of possesso. Art. 1158: The ownership of a thing or other diritti reali in it are acquired by virtue of possesso continued for 20 years. This kind of transfer the property is called USOCAPIONE. We have possesso when I conduct myself as the owner. Art. 1144; Acts performed at the toleration of another cannot serve as the basis of his possesso. (i.e. If I buy a house I become the owner and the possessore. The seller until the moment he delivers the house he's the possessore. To achieve the period of 20 years I can add my possesso to the possesso to the person who sold me the house). The way of acquiring property. Starting with the argument of civil acts, it must be on observed that the civil code mentions many ways to acquire property. Jurists distinguish way by original title (a titolo originario) from ways where the acquisition dpends on the old owner (a titolo derivativo). In First class, beside usucapione we find accessione. Accessione is the union of something to an immobile. For example a house. The general rule says that owner of the land becames also owner of the thing on it. In the second we will put contratti and testamento. Under a certain aspects the two ways differs a lot. If the thing has burdens and I became the owner at titolo originario. I acquire the full property, without limitations. If I buy it from the precedent owner, as nemo protest transfererre quod non habet, my ownership will be so limited as the old owner's right. (i.e. If another person build an house on my land, or I give him the superficie or the owner of the land (by accessione) becomes also the owner of the house. If a person plants trees in my land, I become the owner of the trees, after paying for them). Definition of Contratto art. 1321. Contratto is the agreement of two or more parties to establish, regulate or extinguish an economic legal relationship among them. Contract=Italian contract =/= English Contract (i.e. when I call a thing I call it using the name of the most important part of it sineddoche) Autonomia Contrattuale. Art. 1322. The parties can freely determine the contents of their contracts within the limits imposed by law. The parties can also make contratti that are not of regulated kinds, provided that they are directed to realize interests worthy of protection according to the legal order. (i.e. I have an house and not using it, I need money and I can sell the house. If I don't need immediately a big amount of money and I want to be the owner of the house, I can give to someone the possibility to use the house contratto di locazione). Contract is the mean by which the parties can establish the relationships between them observing limits imposed by the law. (It is the same in every legal system of western countries). Freedom of Contract. Contratto is a mean of self determination. Freedom to make contract or not. Freedom to choose other party. Limits: the cases of monopolistia legale & di fatto. Freedom of contract is freedom to choose a specifically ruled contratto or a not specifically ruled contratto. Freedom to choose different contents from rules established by the code, in other words the most party of rules about contratto are not mandatory. Code Geography

General Rules (art. 1321-1469) Specifically ruled contratti (art. 1470-1986) Related statutes (Wien convention) Contratto between professional and consumer: Consumer code: - Solve et repete - Inademplendi non est ademplendum (even if the stronger party does not perform the weaker party must perform. And if has something to say must go in the court and condemn the stronger party Contratto between professionals: Art. 1229: Art. 9 legge subfornitura. Decreto 231/00 Elements of contratto. Elements of contratto are: Agreement of the parties Causa Object Form when the law imposes it establishing that contratto is void if the form lacks. Fundamental elements: their lackness produces voidness of contratto. Agreement. Art. 1326: Contratto is concluded at the moment when who made the offer has knowledge of the acceptance of the other party. Agreement is the metting of two will manifestations: offer and Acceptance. Offer. Definition: offer is a will manifestation showing author's intention to consider himself bound in case of acceptance by the other party. Invitation to offer. Form of the offer. The general rule: freedom of form. And the exceptions: when a particular form is required. Offer revocation. An offer can be revoked until the contratto is concluded. If the offer has bound himself to keep the offer open for a certain time, the revocation has not effect. Acceptance. Definition: the rule of conformity: acceptance must be conform to offer. If not, it is a offer refusal and a new offer. Form of Acceptance. General Rule Exceptions Written form Conventional form: when the offeror requires a specific form of acceptance, this one is not valid if it has not the required form. Revocation of Acceptance The acceptance can be revoked if the revocation comes to the knowledge of the offeror before the acceptance The problem. To be effective offer, acceptance and revocation must be communicated by one party to the other. Does it mean that the communication must be really known by the subject to whom it has been addressed or it is enough that the communication becomes available for him? Presumption of knowledge.

Art. 1335: Offer, acceptance, their revocation and any other declaration directed to a given person, are deemed to be known at the moment they reach the address of the person to whom they are directed, unless he proves that, without his fault, it was impossible for him to have notice of them. Causa Causa in the code: it must exists and be conform to law. Causa is unlawful when contratto is the mean to escape from the application of a mandatory rules. The problem of promises enforcement. Consideration or if it is a gift, deed or act under seal. Charitable subscription. If there's not consideration (=gift) It is necessary that the party who give the gift takes the obbligation. (IN UK) Definition of Causa. Causa as the reason of promise enforcement: Exchange economic interest Public utility Guarantee purpose Family interest In ENGLAND: Promise is valid if it is contract. Promise is contract if it has consideration Gift has no consideration them it is not contract then is valid only if had deed form. In ITALY: Donation is contratto Contratto is valid if it has a causa Causa donandi requires atto pubblico In England and in Italy free promises require something more to be valid than exchange promise (in England deed, in Italy atto pubblico). Gift have no consideration. (i.e. I won a lottery and want to give half the winning prize to a person, then I change my idea. In order to avoid the emotional promise the contract is not valid if there's only agreement and not the other elements causes of the contract) Object Object is the contain of contratto and then the performance of parties. Art. 1346: The object of contratto must be possible, determined or determinable. The object of contratto can be determined by a third person. Form. Possible forms: the general rule: freedom of form. Particular from requested for the validity of the act: Suretyship fideiussione (express manifestation of intention to became guarantor). Immoveable sales Written form kinds: Scrittura privata autenticata Atto pubblico Scrittura privata Law requires the intervention of notaio for the making of certain written acts who must be registered in public offices (like for example land sales). Form requested for the proof of act: Verba volunt scripta manent. The code requires written document to prove the existence of contratto in proceeding it its value in more than 2,50.

Effects of Contratto Every contratto produces obbligazioni. - Effetti obbligatori - preliminary contratto Some contratti produces transfer of rights (see after) The Transfer Problem. There are several solutions: Roman Solution, French Solution and the Actual German Solution. The Italian Solution. Art. 1376: In contratti having as object the transfer of ownership or other right, the right is transferred when the parties agrees. EXCEPTIONS: Sale of a generic thing. Sale of a future thing. Sale of a thing that is not of the seller. Subjects bound by the Contratto. Parties are bound Art. 1388: A contratto made by a representative in the name and in the interest of the principal, within the limits of the powers conferred on the representative, produces effects directly as to the principal. Power to act as representative is given by law or by the subject who want to be represented with procura (power of attorney). Procura must have the same form of the contratto that representative will conclude Invalidity Of Contratto. Nullit (voidness) if a fundamental elements lacks or contratto goes contrary a mandatory rule. Annullabilit (voidability) if one partys will is defective . Nullit: No effects. Everybody who has interest can ask for declaration. No prescription, no validation (except few cases) but conversion. Art. 1424: A void contratto can produce the effects of a different contratto, of which it has the requisites of substance and of form, whenever, considering the objective sought by the parties, it must be deemed that they would have wished it if they had known of the voidness. Annullabilit: Effects until declaration of voidness then no effects. Only the protected subject can act for declaration, Prescription of 5 years, Possibility of validation. Art.1444: The party who can act for annullamento can make the contratto valid expressly. Contratto is also made valid if this party, knowing that is not valid, voluntary performs it. Causes of Annulabilit: Art. 1427: A party whose assens was given by errore (mistake), extorted by violenza (duress) or obtained by fraud, can ask for annullamento of contratto. ERRORE: Errore is relevant if it is essential and it could be known by the other party. Essential means that it has pushed the victim to conclude a contratto. If it had not been, that party should not have concluded the contratto. It is recognizable if it would have been discovered by a person of normal diligence. VIOLENZA: Art. 1434: Violenza is cause for annullamento of a contratto even if made by a third person

Art. 1435: Violenza must be of such a nature as to impress a reasonable person and to cause him to fear that he or his property will be exposed to an unjust and considerable injury. In this respect, the age, sex and condition of the person shall be considered. DOLO (Fraud): Art. 1439: Fraud is cause for the annullamento of the contratto when the deception employed by one of the parties was such that, without it, the other would not have entered into the contratto. RESCISSIONE: Art. 1447: A contratto by which one party takes obbligazioni under unfair conditions because of the necessity, known to the other party, of saving himself or others from a present danger of serious personal injury, can be rescisso on demand of the party who takes such obbligazioni. Art. 1448: If there is a disproportion between the performance of one party and that of the other, and such disproportion was the result of a state of need of one party, of which the other has availed himself for his advantage, the injured party can demand rescissione of the contratto. The lesione must exceed one-half of the value that the performance made or promised by the injured party had at the time of the contratto. REGULATION: Time prescription of one year. Possibility of rettifica. Art. 1450: The party against whom the rescissione is demanded can avoid it by offering a modification of the contratto sufficient to restore it to an equitable basis. Impossibility of making the contratto valid. Risoluzione of Contratto. Risoluzione means cancellation of the relation created by contratto. Risoluzione cancels obbligazioni produced by contratto. Parties do have to perform and they can have back what they have given on the basis of contratto. Cases of Risoluzione are: Impossibility of performance. Hardship. Non performance due to debtors negligence or intention. Hardship. Art. 1467: If extraordinary and unforeseeable events make the performance of one party excessively harder, the party who owes such performance can ask for the risoluzione of contratto. The other party can avoid risoluzione if he offers to modify equitably the conditions of the contratto. (I.e: Hardship clauses in international trade) Guilty non performance. The creditore can ask for performance or for risoluzione. Art. 1455: Risoluzione is possible only if the non performance is serious Non performance is serious when if had the creditore known about it at the moment of conclusion of the contratto, he would not have concluded the agreement. Ways to reach Risoluzione. Risoluzione giudiziale: The creditore can act in the Tribunale asking for it Diffida ad adempiere: The creditore can send to the debitore a written request, asking for performance within an appropriate time and declaring that if the performance will not take place in that time,contratto will be considered risolto. Clausola risolutiva espressa. Art. 1456. Parties can expressly agree that contratto will be risolto if a specified obbligazione is not performed in the right manner. In this case, risoluzione takes place by operation of law when the interested party declares to the other that he intends to use the clause of risoluzione. In USA/UK and Anglo-Saxon areas they have punitive/exemplary damages. Judges can ask to

pay a sum of money not in order to repair produced damages but in order to punish them. We don't have that because of the different legal system thinking that only the damage must be repaired. Other two rules about penalty clause. Art. 1383: Creditore cannot demand both performance and penalty, unless penalty was estblished for mere delay. Art. 1384: Penalty can be equitably reduced by the court, if the principal obbligazione has been partly performed or if the penalty is manifestly excessive. Atto Illecito. Art. 2043: Any fraudolent, malicious or negligent act that produces an unjustified injury to another obliges the person who has committed the act to pay damages. (In Anglo-Saxon areas they speak about torts because they have many of them.) Elements of torst: Intentional or negligent conduct Unlawful damage Close relation between damage and conduct. Exceptions Self Defense (If the damage is similar or less to the one the other person provoked to me) State of necessity (If I try to avoid a person crashing the window of a shop) Lackness of capacity (minor) Liability of another's act. Art. 2049: Masters and employers are liable for the damage caused by an unlawful act of their servants and employees in the exercise of the functions to which they are assigned. The same rule: liability of parents, guardians, teachers and masters of art (proof of being unable to prevent the act). Objective liability. Art. 2050: Who causes injury to another in the performance of an activity dangerous by its nature or by reason of the tools employed is liable for damages unless he proves that he has taken all suitable measures to avoid the injury. The same rule: damage caused by animals, things in custody (proof of foruituous event), collpase of building (proof of defect in construction or maintenance). [i.e. Car Circulation: Art. 2054: The driver of a car is liable for the damages caused to people or property by circulation of the vehicle unless he proves that he did all possible to avoid the damages. In the case of car accident, it is presumed until proof of the contrary is given, that each driver caused the damaged suffered by each car. The car owner is liable in solido with the driver, unless he proves that the car was in circulation against his will.] Marriage. Marriage as act and as a legal relationship. Kinds of marriage: Religioso Civile Concordatario Marriage effects. Legal relationship in which wife and husband are placed in the same position. No one has a stronger power on the other. Rights and Duties: Trough marriage husband and wife acquire the same rights and assume the same duties. A mutual obbligazione to loyalty, moral and material support, cooperation in the interest of the family and cohabitation derives from the marriage. Both spouses ares bound, each in relation to

his own assets and his own ability for professional or household work, to contribute to the needs of the family. Pattern of family. The spuoses agrede between them on the pattern of life and fix the residence of the family according to the requirements of both and the superior. * Duties to the children. Marriage imposes on both spouses the obbligazione to maintain, educate and instruct children, taking into account their ability. Separazione. If the spouses do not agree, the law establishes the remedy of separazione legale. Violation of marriage duties produces addebito. After 3 years of separazione, spouses can ask for divorce. Divorce cancels civil marriage not religious one. Patrimonial Regime. Spouses can choose between two kinds: - Separazione dei beni (Every spouse is the only owner of the things he had before marriage and the things that he acquires during the marriage. If they choose this one and during the marriage one of the two buys a house, he becomes the only owner in this case.) - Comunione legale dei beni. (Every spouse is only owner of the things he had before marriage, things that he acquires by gift or by succession, things of personal or professional using, things he acquires as a compensation for damages suffered by him, things he acquires with the price if transfer for the mentioned things). Things in common: Things acquired during marriage (only if they are present when comunione is cancelled), fruits of belonging exclusively to one spouse if they are present when comunione is cancelled, Income from spouses activities, Firms formed after marriage and managed by both spouses; if azienda belongs to one spouse but it has been managed by both of them, incomes are in common. If they don't choose at the moment of the marriage, comunione is applicable. They can change the choose regime, but it's necessary an atto pubblico. Inheritance Succession Problem of destination of assets of a natural after his death. By testament a natural person can dispose of his assets for the time after his death (successione testamentaria). If testament lacks, the law establishes who they are (successione legittima). Successione testamentaria. Testament is a voluntary act. It Must be in writing and signed. It could be made by the person (testamente olografo) or with the help notaio (testamento pubblico). The person can choose freely heirs but a part of the assets (from a quarter to half) must go to certain relatives (spouse, sons; legittimari and legittima). Testament can appoints theirs (who receives a part of assets) and establishes legacy (the attribution of a certain thing). Legacy must not be accepted. Acceptance. A person who is called to an inheritance as heir must accept. There are two kinds of acceptance: - With beneficio d'inventario in this case heir is liable of inheritance debts only to the extent of inheritance assets; - Without beneficio d'inventario In this case heir is liable of inheritance debts beyond inheritance assets and if this one is not sufficient, he must pay them with his money. Legacy shall not be accepted because the related debts are limited to the extent of the value of legacy. (common when the debts are bigger than assets, and the heir is the husband that wants to safeguard the memory of his husband). In the case of a minor the acceptance by the parents must be always acceptance with beneficio d'inventario. Separation.

If the inheritance assets are rich and heir has a lot of personal debts, inheritance creditors can ask for separation. If they do, they are preferred to heir creditors qand can satisfy themselves on inheritance assets with priority. I.e. a person during his life bought a house but with money of a bank. If the person at the moment of death has not refunded all the debts the creditor (bank) can ask for separation and obtain the house, sell it and have the money back. If there are extra money they go to the heir. Without separation the bank might have nothing.

BUSINESS LAW.
(Commercial Law)
The Magical figure of the Entrepreneur. An entrepreneur is the person who professionally carries out an organized economic activity to the purpose of producing or exchanging goods or services. 1. Professionality. Means the habituality in carrying out the entrepreneurial activity. Consequently, someone who carries out this activity just occasionally cannot be qualified as an entrepreneur. 2. Economic Nature. Directed at obtaining a profit, i.e. a surplus of profits compared with losses. Equalling profits and losses can be qualified as an entrepreneur as well (this is the case of the public entrepreneur). A person coordinating a no-profit enterprise is not an entrepreneur. 3. Organization. In order to be qualified as an entrepreneur one needs to coordinate somebody else's capital and/or labour. I.e. a shopkeeper has not subordinated worker but he's an entrepreneur. 4. Market Orientation. In order to be an entrepreneur, one must orient the results of his activity towards the market. Even if the activity is a complex one, a person is not an entrepreneur if he has not private purposes. (i.e. it's not an entrepreneur a person that builds a house for himself. If the house is built in order to have his shop inside of it, the person is considered an entrepreneur). The small Entrepreneur. Art. 2083: Direct farmers, craftsmen and small tradesmen are small entrepreneurs. Whoever carries out an organized professional activity mainly by his own labour and the labour of his familiar is in any case a small entrepreneur. Small entrepreneurs are subjected to specific rules (normally if the economic activity goes wrong and they make many debts without possibility to pay that, bankruptcy is not applicable). The definition of small entrepreneur arises a problem: we find this definition in the civil code but a particular act of 1985 gives another definition of craftsmen: Someone who, according to the sector of his activity, has up to 40 subordinates can be considered a craftsman. The prevailing opinion is that this definition of a craftsman only applies to the benefits accorded to craftsmen above this act. Judges say that one is the definition of the civil code, and another different thing is the definition of the statute. This is only a definition whose aim is to choose entrepreneurs having the right to obtain the benefits accorded to craftsmen. This because Italian law tends to give craftsmen benefits (i.e. in case of mortgages at less interests than normal The definition of small entrepreneur for other purposes is given by the civil code. We cannot use the statute definition in order to obtain the application of other rules further than the provision of the act of 1985. The Agricultural entrepreneur. Art. 2135 says: an agricultural entrepreneur is someone carrying out one of the following activities: Farming Forestry

 Animal Raising Activities connected with those mentioned above. Also the agricultural entrepreneur when does not pay debts is not subjected to bankrupt. The agricultural entrepreneur is a person developing his activity using biological cycle (animal b. cycle or vegetable b. cycle). It's an agricultural entrepreneur also a person who raises animals in houses, in condition of intensive raising. Even the fisherman is an agricultural entrepreneur. We have not an agricultural entrepreneur when a person uses person/vegetables without using biological cycles. i.e. If I buy and sell pets (or cows) without raising them, I'm not considered an agricultural entrepreneur. I'm a seller of animals. We've this kinds of entrepreneur even if the person carries out this activities and activities connected to this. i.e. If I have a restaurant and I'm also a farmer using my own products I'm an agricultural entrepreneur. (or a producer of wine and selling it). Even if I produce only the 20% of my products I'm an agricultural entrepreneur. Connected Activities must be fulfilled: 1. Said activities must be carried out by the same entrepreneur who carries out a main activity (subjective connection); 2. The activities must primarily assets products obtained through a main agricultural activity (objective connection); The Commercial Entrepreneur. Art. 2195 identifies 5 kinds of commercial activities: 1. Industrial activity directed at the production of goods and services; 2. Intermediary activity in the circulation of goods (all trading activities belong to this group). A person using trucks is a commercial entrepreneur, if this carries out professional activities (general def.). 3. Transport activity by land, water and air; Auxiliary activities, i.e. an agent for a car producer is considered a commercial entrepreneur. (agent: in English law is a person who acts for another person making contracts. In Italy mandatario is the person who is appointed, agent is the so called rappresentante di commercio and makes promotion and advertising for the producer. In general term agents is the person who makes contracts in the interest of another person, for example selling cars of the producers. If the agent is the agent of an agricultural entrepreneur, he's also an agricultural entrepreneur). 4. banking or insurance activity; 5. activities which are auxiliary to the above; Special Rules. Legal system establishes special rules for the entrepreneurs concerning: Legal publications Book keeping entries Rules on representation Bankruptcy procedures Registro delle imprese. Sezione speciale: piccolo imprenditore informative effectiveness for third parties. These are the small entrepreneur. Registration in special section produces INFORMATION AND PUBLICATION EFFECTS. We find here small commercial enterprises and non commercial enterprises (agricultural one). Sezione ordinaria: others declaratory effectiveness. We found here big commercial enterprises. Registration in ordinary section produces DECLARATORY EFFECTS and in some cases COSTITUENT EFFECTS. These are opposable to third parties. These means that an element in this section is considered not known by third parties unless it's proved that third parties had knowledge of it.

These sezioni are collected by Chambers of Commerce, where there is the registry of enterprises. Registration in special and ordinary sections produces different effects (see above). In the registry I can verify who is the legal representative of an enterprise. That's important if I'm a seller and I have to sell to a corporation. Declaratory effectiveness. The declaratory effectiveness makes the registered acts of facts opposable to third parties; this means that an item registered in the ordinary section is considered known by everybody, without possibility of opposite evidence, An act or fact which isn't registered is considered not known by third parties, unless it's proved that they had knowledge of it. The registration in the special section of an agricultural entreprise produces declaratory effects. The Constituent effectiveness The constituent effectiveness renders the registered fact or act productive of effects towards third parties. It applies, for example, to the filling in the register of enterprises of the memorandum of association of a company limited by shares. The company comes to existence and acquires legal personality as a consequence of the registration. Partnership vs Corporation. IF members of a corporation by shares before the registration develop commercial activity we don't have corporation by shares but partnership. The most important difference between partnership and company is the limitation of liabilities. In the partnership the member is liable also with his personal assets. If a commercial partnership makes bankruptcy there is also personal bankruptcy of the members. In the case of a corporation only the assets of the corporation are liable for the corporation's credits. They can satisfy themselves only using the corporation assets. The registration in the registro produces the CORPORATION. Before we had only PARTNERSHIP. Registration data. Important data of the enterprise to be registered within 30 days: Surname, name, date of birth and citizenship of the entrepreneur. The name of the enterprises The purpose of the enterprise The registered office of the enterpise 1 Surnames and names of the institori (Chief Officers) and procuratori (nominees). The entrepreneur is required to request the registration of any changing regarding the above elements. Finally, the entrepreneur must request the registration of the winding up of the enterprise; the 3' day limit is foreseen also for the registration of changing and winding up. When I make something and my partner is a company, the first thing that I make is a misura camerale in order to know where the office of the company is and who is the owner of the company. The law say that to start a proceeding I must send a communication to the registered office. Commercial Representation. 1) Institore (Chief Executive Officer) 2) Procuratore (Nominee) 3) Commesso (clerk) The CEO. Receives his powers in consequence of his setting. General representation power: he may carry out all acts assetsing (?) the enterprise at the head of which he is placed. He carry out all acts and activities of the enterprise. He can make contracts, he can buy and have all the powers with 2 Exceptions: 1) He may not sell the entrepreneur's real estate; 2) He may not grant mortgages on the entrepreneur's real estate.

In italian: Il rappresentante SPENDE il nome del rappresentante. The CEO uses his power of representation when he says I'm the CEO and I act in the interest and in the name of the entrepreneur. N.B: CEO =/= AMMINISTRATORE DELEGATO (In EN: General Manager). This one is the manager, a person with a particular relation with the company. In Italy the manager is the member of the administrative board, he's not a subordinated worker. The CEO is a subordinated worker (the head of subordinated workers) with a long time contract, under the AD. In Italy the CEO is called Direttore Generale. The Nominee. Has the power to carry out, on behalf of the entrepreneur, the activities pertaining to the enterprise, even if he is not places at its head. I.e. the head of a FILIALE of a bank is the Director and Procuratore (Nominee). He has a small power of representation. He has only a certain amount of money and can act between that limits. The Clerk. May carry out the activities normally implied by the operations they are in charge of, i.e. they may carry out the activities which are within their competence. He's not the owner of a shop, normally he gives goods and receives money. He has small power of representation of the entrepreneur. The law establishes that the clerk must observe instruction of the entrepreneur. Book Keeping Entries. The commercial entrepreneur must keep: Two defined accounting books: the daily book and the inventory book (libri contabili). Other undefinied entries as required by the nature and size of the enterprise. They may be imposed by the natural size of the enterprise. Daily Book (Libro Giornale) is the book into which the operations pertaining to the enterprise activity must be registered day by day. Not to be registered on the day they are carried out (also the day after I.e.), but they need to be filed as soon as possible and respecting the cronologic order. The civil code does not set a time limit for registration, whilst tax legislation sets a limit of 60 days. Inventory Book. (Libro inventario) Prepared at the beginning of the enterprise activity and after that at the end of each year. Every inventory must show and evaluate the enterprise's assets and liabilities. The inventory ends with the financial statement, i.e. the balance sheet and the income statement. Principles of evidence and truthfulness, of a orderly book keeping. Sticazzi Book. (Book di sta cippa) must be fulfilled if the entepreneur has voglia of do it. Sometimes if there is a ceppa nera situation cannot be fulfilled. Formalities. The daily book and the inventory book must be numbered progressively on every page. The duty of initial stamping has been repealed. All book keeping entries must follow the rules of orderly book keeping, without white spaces, spaces between lines or additions in the margins; erasures may not be made, and any necessary cancellation must be made ina way that leaves the cancelled words readable. The book keeping entries mus be kept for 10 years from the date of the last entry. This book and in general this documents has a particular effects for the point of view of the proof in commercial controversies. Probative effectiveness of keeping entries. Book keeping entries may be used as proof tools, in particular they always prove against the entrepreneur, whilst they can be a proof in favour of the entrepreneur only in connection with other entrepreneurs and for relationships assetsing the enterprise activity, as long as they are regularly kept.

Legal documents Imprenditore must keep in orderly way, for every business, the originals of received letters, telegrams and invoices as well as a copy of all sent letters. The Assets and the transfer of assets. Complex of goods organized by the entrepreneur in order to carry out the enterprise activity. It is possible to transfer the enterprise assets authenticated written form of public deed. The contract must have the certification by the notary when there's transfer of assets. Prohibition of Competition Who sells the assets is not allowed for 5 years from the transfer, to start a new enterprise which because of its purpose, its location or other circumstances is fit to subtract customers from the transferred assets We have prohibition of competition only if there's a transfer of assets. Succession in contracts. All Contracts pertaining to the assets are transferred together with the assets theirselves except; Contracts with a personal nature (for example the contract with the factory psychologist, or the legal counselling contract, and so on); Contracts specifically excluded by the assets transfer contract are not transferred. Destiny of claims and debts. I have a transfer of assets when I receive something to run and carry on a commercial activity. If this is not happening, I Receive goods not assets. Destiny of credits of the transferred assets. The credits of the transferred assets are transferred together with the assets the transfer does not require notification to the transferred debtor, nor his assent. Following the general rules it is necessary, to have the debtor pay the new creditor, to notify the assignment to the debtor or to have his assent. If there's no assent the debtor it's possible doesn't know about the assignment and can pay well also paying to the old creditor. In the case of the transfer, the credtis are transferred with the assets without necessity of notification. The buyer is liable for the debts resulting from the obligatory book keeping documents. Kind of companies. Partnerships: Societ Semplice (SS) Societ in nome collettivo (snc) Societ in accomandita semplice (sas) Companies: Societ per azioni (SpA) Societ a responsabilit limitata (Srl) Limited Liability Company Societ in accomandita per azioni (S.a.P.a.) Societ semplice (S.S.) Societ Semplice may only carry out agricultural activities: some tax legislation rules have, however, permitted to use the S.S. Also for commercial activities, such as, for example, estate administration. The other partnerships, i.e. snc. And sas, may carry out both commercial and agricultural activities. As to the form of the societ semplice contract, no special form is foreseen. The partnership contract may be modified only with all partners' assent, unless differently stated in the articles of association. Contributions. Contributions are normally foreseen in cash but they can also be in goods or services. If the contributions are not determined in the partnership contract, it is presumed that partners are

obliged to contribute, in equal parts, what is necessary for reaching the partnership's object. All contributed goods are to be used within the partnership to the scope of reaching the partnership's objectives. The direction of the partnership. The direction of the partnership may be assigned following two models: disjunctive management and conjuntive management. By the disjunctive management model, every direction partner is called to manage disjunctly right of opposition. By the conjunctive management model, more partners are called to manage together and the assent of all managing partners is required for every management act. The majority principle. All managing decision are taking by the majority and not by only one. In the case of SS if the partnership contract does not say anything every member is also manager. There' s a problem of representation: a collective being must have a legal representative but in the SS every person is also the legal representative of the SS. In order to make extraordinary administration and important acts (i.e. sell of an immoveable of the partnership) is necessary the agreement of the majority while for normal administration one is sufficient. Sharing profits. Each partner has not only managing power but in SS has the right to have his part of profits, after the rendering of accounts has been approved. Every year after the balance every member has a part of the profits. The amount is proportional to contribution received by parties during the year. If the value of contribution is not determined by contract they're presumed do be equal (contribution in losses and profits). It's possible in the contract to establish a different participation (i.e. a member on the basis of the contract may have the right to share an higher part of profits and a less part of losses) patto leonino. The two models (Company by share and partnership) are paradigmatic models: they show the basic rules established by the SS with some exceptions. Debts. Italian lawyers say there's a not limited liability for the partners of SS. Means that when I become partner of a SS I'll be liable for all the debts existing at the moment (made in the past) not only with my contribution but also with my personal goods. In SS the creditor of the partnership make as a choice for his payment to the partnership or to a member of the partnership (liability in solido). If he asks to a member, this one can say to the creditor that there are goods of the partnership giving the possibility to the creditor to have satisfaction. In this case he has the duty to use the goods of the partnership mentioned by the member. I.e. in the case of a personal creditor of a member of the partnership, this one (creditor) cannot satisfy himself using directly the assets of SS but if the goods of the member are not sufficient, the member can make a liquidation of the value of his participation in the partnership. In this case the member goes out of the partnership (1st method to go out of the partnership, see below). Going out of the partnership. There are cases the member can go out of the partnership: If one member dies the partnership goes on with other members if they are 2 ore more. If they are only 2, the other member must make again the plurality of members (finding another member in six months maximum). One member can decide to go out of the partnership. The case of exclusion: We have exclusion when a member commits a breach of his obligation as member, and so the others decide to throw him out. He must anyway commit a very serious breach of the partnership. When the Socio d'opera (the one who gives labour and not money/goods) becomes not able to work. The member who goes out of the partnership is liable for the payment of the debts until the moment

he goes out. Ending of the partnership. The partnership ends: When it reaches its object/aim, when there's the impossibility to carry out the common activity (i.e. when the partners do not agree about the activity carried on together), when only one member remains if he cannot find another one, when the members decide to end it. When partnership ends goes in a particular situation: liquidation. Means that it goes on living but only in order to satisfy its debts. The partnership cannot carry on activities for personal purposes. SUMMARY: The particular element of the SS is the fact that members in the partnership are at the same time also managers and legal representatives, and if the partnership contract does not say differently we have all the powers in the hands of any member of the partnership. Power and liability go together (if i'm liable is easy I exercise my power thinking). When there's not liability there's not power. In the case of SS we have all the managing power in the hand of members. The Societ in nome Collettivo In the SNC all partners are unlimitedly, jointly and severally liable for the company's obligation, even if they are not director. The new partners are unlimitedly, jointly and severally liable together with the other partners for partnership obligations (i.e. debts) arisen before they become partners (as in the SS). Partnership name. i.e.: Broken wings SNC of Tom Red and C. The partnership name may also contain the name of an existing or deceasaed partner (because it is known by customers), if the exit partner or the heirs of the deceased partner agree. Reading the name you can realize the name of one of the partner (that is liable for debts) you can satisfy yourself as a creditor using the personal goods of that person (and other members). For the SNC the name is something like a trade mark. The SNC is run with the rules of the SS unless it's said different. Contents of Articles of association. The MEMORANDUM OF ASSOCIATION is the true contract creating the company, whilst the articles of association contains the rules for the functioning of the company. The CONTRACT, different of memorandum, must contain: Data identifying the partners; Partnership name The names of the partners who are directors (also a non-partner can be confirmed as a director) and representatives of the partnership; The partnership's objects; Each partner's contributions, the value associated with them and the method of evaluation: The duration of the partnership; The address of the partnership's registered office (sede legale) and any branch offices; The performances activity-contributing partners oblige themselves to: The criteria for sharing profits and losses Registration in the register of enterprises (obligatory) within 30 days from the formation of the partnership. For registration authenticated private written document or public deed. No Registration. If registration lacks, the partnership is qualified as irregular; the relationship between the partnership and third parties are regulated by the rules designed for the societ semplice. There are many consequences, the most important is the fact than in the SNC creditors of the partnership have the possibility to satisfy themselves using the personal goods/assets of the members (because members are of course personally liable). BUT: In the case of SS the partnership creditor can ask for the payment immediately to a member of the

partnership using his personal money, but there are assets/goods of the partnership that creditor can use to satisfy himself first, before using personal money. In the case of SNC (if it's regular) there is another rule: Members are personally liable and must pay debts using personal money but the creditor cannot satisfy himself using personal assets of members if before he has not tried to satisfy himself using goods of the partnership also going on with the execution BENEFICIO PREVENTIVA ESCUSSIONE. Prohibition of Competition. Partners may not carry out, on their own or other people's behalf, any activity competing with the partnership's activity, nor participate as unlimitedly liable partners in any other competing partnership (especially for other partnership in the same territory). Permission if there is other partners' assent. The other partners' assent is presumed if the competing activity was already carried out before the partnership was formed, as long as the other partners knew about this. In case of breach: damages and exclusion. Possible to be limitedly liable partner in another competing partnership or company Partners' liability Partnership creditor may not ask for payment of his credit without having previously turned to the partnership and only if his action is fruitless, i.e. is unable to satisfy his credit, he may turn to the partner. The case of irregular SNC. Individual creditor of a partner. An individual creditor of a partner may not request liquidation of the debtor partner's quota. He can make opposition to he prorogation of the life of the partnership and in this case obtain liquidation of debtor partner's quota. Winding up and liquidation. Expiration of the term of duration; Achievement of the partnership's object or impossibility of achieving it (for ex. Irremediable disagreement among partners); Partners' resolution; No plurality of partners not made again within 6 months; other events specified in the articles of association declaration of bankruptcy; administrative liquidation of the partnership, Winding up produces liquidations. Liquidations must turn the partnership assets into cash and with the income they must pay the partnership debts. If something remains, partners share it. The Societ in Accomandita Semplice Two categories of partners: Accomandatari (unlimited partners) Accomandanti (limited partners) Accomandantari are jointly, severally and unlimitedly liable for partnership obligations, the latter are liable limitedly to the amount contributed. Partnership name. i.e. Broken wings sas of Tom Green and C If a limited partner accepts his name to be inserted into the partnership name, he loses the benefist of limited liability towards third parties, and therefore becomes jointly, severally and unlimitedly liable for partnership obligations in external relationships. Applicable rules. Rules applicable to the Societ in nome collettivo as far as not differently regulated. The partnership must be registered in the register of enterprises, and in case this is not done the partnership is called irregular. In this case, the rules governing the SS apply to the relationships between the partnership and third parties.There are some specific rules anyway: Articles of Association. Indications foreseen for the snc and of unlimited partners and limited partners. The unlimited

partners have the rights and obligations foreseen for the societ in nome collettivo (partnership direction). Members who have no limitations (accomandatari) are the only people who can manage the partnership and can be managers of the partnership. Accomandanti. A general management prohibition concerns the limited partners. Violation produces jointly, severally and unlimitedly liability towards third parties for all partnership obligations and possible exclusision. Exceptions: An accomandante can manage specific power of attorney for single businesses (if accomandatari give to accomandanti the power to do that); Services under direction of the directors; Yearly communication of the financial statement and check of its accuracy by consulting the partnership's books and other documents. Winding up The same causes of SNC. A specific one: If there are no more limited partners, or no more unlimited partners, unless the plurality of partners' categories is created again within 6 months. If there are no more unlimited partners, in the 6 month period the limited partners nominate a temporary director for carrying out ordinary management acts. Winding up produces liquidation.. The Companies. There are as we saw 3 kinds of companies: Societ per azioni (company limited by shares) Societ in Accomandita per azioni Societ a responsabilit limitata (Limited Liability company). The rules applicable to the societ per azioni are mostly also applicable in the societ in accomandita per associazioni. Spa and SRL imply limited number of members. They run the risk to lose only their assets they have legal personality. They are different subjects of the members. Societ Per Azioni. The Societ Per Azioni is ruled by the general principle of shareholders' limited liability: shareholders are liable limitedly to the contributed amount. The company name may be formed in any way, but it must contain the indication of SPA A SpA must have a minimum capital of 120000. The assets of the company is the only assets liable for debts and satisfying creditors. Also in the case of bankruptcy (that is possible), it involve only the company and the assets of the company. Members of the company are protected. Only if a member of the company gives guarantee that he will pay if the company does not pay, he's liable for company's debts (strategy often used by banks when they give loans). Contents of the memorandum of association. In the memorandum of association the following informations, among other, must appear: The company name The town where the registered office and any branch offices are located Voidness of the company. The voidness of the company once it has been registered at the register aof enterprises can be declared only in following cases: The memorandum of association have not been executed in the form of a public deed; the company's object is illegal; in the memorandum of association there is no indication of the company's name, the amounts contributed into the company capital or the company's object. Liquidation. A contract made by a void company is void itself. i.e. We are 3 people making a spa. The company buys and sells again cars. First of all we make the contract (company contract) in which we say Tizio and Caio agree to establish a SPA having the following conditions... then we ask and obtain registration and star the activity. First finding an house where organize the car shop, then making a contract with the owner of the house, finding a

car producer and making a contract with a car producer in order to buy cars and selling one of this cars to a customer. After the company has been established we start to carry out activity. The company speaks and acts via managers (that makes the 3 contracts: contract with car producer and with house owner and contract with the customer that bought one car). First case: I pay all the sum of money for the house but I have to pay part of the price to the car producer (because I sold only one of the three cars). We used all the contribution to pay the house, and we have a debt towards the car producer. For the legal point of view we have the company established by the company and then the 3 contracts the company made (all correct and valid). After the registration a cause of invalidity is discovered (i.e. we realize we made a mistake at the moment of conclusion of the contract). It is an even that allows declaration of voidness ALSO after the registration (one party asks for the declaration of voidness and judge declares it). In this case we apply the general rule: Void the company Void the contracts made by the company. If this rule is applied protects the members of the company because things run in a bad way and we produced losses if it's possible to void the contracts things come bad at the moment before the conclusion of the company, it is an interest to have the declaration of voidness also of the contracts (cause they are gaining losses). BUT this rule is against the THIRD PARTIES (that have the interests to see contracts valid in order to satisfying their credits). These are conflicting interests. The legislator chooses to protect the interests of the third parties (because they had faith the company was valid). THIS IS THA SYSTEM (cit, Gianola).

CONSUMER LAW (Cristina Valentina)

Kind of law quite close to our everyday life. In Italy we don't have special rules about consumer law. Consumer law is a quite new law in Europe. In 1957 the EU started with the treaty of law by 6 states (DE, FR, IT, BG, etc..), but consumer law started just in the 80s. Historical Background. The first place where protection of consumers started were USA in the early XX century. They started to look at consumers problem about cars (in case of car accident, who should pay?) and food. In 1929 with a strong crisis the USA legislator enacted some acts in order to protect consumers. The question became strong in USA with the problem of the Chevrolet Corvair (GM) of Ralph Nader. This car had many defects and the consumers made the first class action against General Motors. GM and Nader had to pay a very high fee to consumers. After this fact the consumer problems became very strong and known. Also in some EU states legislator started to enact acts for protecting consumers. First in Germany (against problems of competition on the market and bad contracts with consumer). The Scandinavian legislator started adopting some rules about market behaviour. In Italy at the time there was no specific legislation about consumer law. In 1957, EEC (European Economic Community) was founded among the six states. They wanted to improve the living and working condition of the member states (more work opportunities, higher salaries, etc...). But the way it was understood was mainly an economic point of view with the free circulation of goods, capitals, and enhancing competition in the markets of the member. There weren't considered social aspects and consumer interests. Improving living condition includes many aspects not considered in EEC: we live better in a better environment, we live better if we have better consumer law, etc.. The treaty in 1957 (treaty of Rome) originally did not speak of consumer at all. In 1986 (single Act), 1992-1993 (Maastricht treaty), 1999 (Treaty of Amsterdam), etc... consumer law was inserted in the treaty of Rome (modified by these treaties) and EU legislation. These treaties said that consumer protection must be taken into account by policies of EU. The EU community starting from Maastricht treaty was no more only an Economic Community, there were interests in other aspects a part from economic one. The term EC (European Community) and EU (European

Union) were introduced with this treaty in 1992, instead of the precedent EEC (European Economic Community). The Treaty of Lisbon in 2009, joined the 2 expressions and now there is only EU. The first legislation about consumer protection was made in the 80s in EU. Useless excursus on EU: European union is made by: Directives and Regulations (laws). EU Council (made by ministers of member states), EU Parliament (directly elected by people). For consumer protection the main instrument used in EU are Directives. They have to be received in States and these have to make laws about that, slightly different from State to State. Otherwise, the Regulations are a stronger and strict instrument, giving everybody the same rules, used in other matters (i.e. Competition policies, environmental policies, non discrimination policies, etc..), and not used in consumer protection. In case of Directives, the internal legislation (i.e. of consumer production) of every State comes directly from Directives. In Italy we have Codice del Consumo, that is a collection of rules coming directly from EU sources (Directives). Consumer Law. The consumer is a weak subject on the market for many reasons: 1. The producers are projecting, preparing and putting in the market without thinking about informing consumers of the characteristics/how to use/etc.. of the products. 2. They don't have a choice sometimes. (i.e. in case of a bank account). 3. If something goes wrong (i.e. if the product is not as promised), the consumer often cannot go to court against producers due to time and money they would have to spend. Consumer law is mainly about two aspects: Protection of health and safety. There is an horizontal DIRECTIVE about general product safety. Consumer products are many, but in general they must be safe and they must respect EU rules about safety. It's a general rule, they have to be safety even if they don't have a specific directive. If the product is defecting and this creates a damage (i.e. a car has a defect and you crash) there's a different problem of guarantees, and we have an horizontal DIRECTIVE about Product Liability (the producer has to pay damages). Protection of economic interests. STANDARD CONTRACTS. Between a consumer and producer, that usually contains little clauses or they're not written clearly. Moreover consumer signs a contract made before, and not discussing about it with the company. There was a DIRECTIVE against standard contracts in 1993 (93/13) and in particular against Unfair Contract Terms (Clausole Abusive). That says in standard contracts with consumers any clause which creates an unbalanced situation within professional and consumer is not valid even if the consumer has signed it. MISLEADING ADVERTISING. There was a DRECTIVE against it (84/450). It didn't bring much debates. It basically prohibits misleading advertising. There is a directive with a special regard for weak consumers (children, superstitious people, terrons, etc..). In the '84 where this directive came out, comparative advertising was prohibited in almost all countries in Europe (in USA and UK was legal). This directive didn't say nothing about this kind of advertising. COMPARATIVE ADVERTISING. Only in 1997 with another DIRECTIVE (97/55) the comparative advertising is legal in all European Contries, but of course unfair comparative advertising (this advertising is legal only if it says the truth and is informative) is stricly prohibited. Anyway it's very difficult in Europe make a correct comparative advertising, but it's possible. DIRECT SALES: Catalogue Sales (There were regulations about the photograph on the catalogue), Doorstep Sales, Internet Sales (regulations on when you can receive the goods,

regulations on refunds). Regulations for the Cooling off period for the moment the customer see the actual good, he has 10 days for changing the goods, In italian Diritto Recesso. Regulations on the Right of withdrawal. AFTER SALE GUARANTEES. DIRECTIVE (99/44). If the good is not as promised In the case of lack of conformity (the product does not give the ways of use of other products of the same category). i.e. if you buy a car without reverse gear, even though in the contract there wasn't written anything about that. i.e. if you say to the car seller you need a car for offroad and he gives you a non functioning car for that aim. In IT you have 2 months for when you discover the lack of conformity to obtain a refund. UNFAIR SALES PRACTICES. Practices that push the consumer to some purchase, or which omit something in the contract. i.e. the Package of holidays, Timesharing (multipropriet) Cooling off period: If the entrepreneur makes me an offer that he reputes incredible and only for the moment, the consumer may think that instead of he doesn't need the think he will buy that because it's just for the moment the special offer. In order to protect consumers legislator establishes the cooling off period. It's possible that the buyer buys something only because there's a surprise and not for a need. Also Roman law established rules about mistake, misrepresentation, duress (costrizione, violenza), and the defect. Cooling off period was invented by the english legislator. In France they speak about Aggressive saying the marketing strategy is very aggressive towards the consumer. i.e. an entrepreneur offers an encyclopedia free to a consumer, but this one have to pay the updating volume of the encyclopedia (with an high price). For this reason there's the Recesso. Psychologists say that often we don't buy because we need something but because of the emotion of the moment. It is important to make a project for the shop in order to have a SHOPPING EXPERIENCE. Bla bla bla. In this process the consumer is weak and must be protected. The European Law: Directives. Rules adopted in France are discussed in EC, then applied in all countries. Then there's a new idea about a rule in Italy that is discussed again in EC and so on... This is the case of consumer law also for small entrepreneurs going on discussing in the EC right now. In Italy. In Italy there's a problem in order to say the kind of rule: a person who makes a contractual offer, after the offer can revoke it or redraw it. Concerning some contracts (that remain for a non determined period of time), the law gives to the two parties the power to make a declaration in order to destroy the contract licenziamento. This kind of declaration is called RECESSO. In the case of Cooling off period we have the possibility of the customer to say he's not interested in the contract. In Italy we don't nspeak of RECESSO, Withdrawal, but in a general way THE RIGHT OF THE CONSUMER TO CHANGE HIS MIND (could be recesso, revocation, etc...).

BUSINESS LAW (again).

... The SpA: Models Of Management and control (Corporate Governance). Concerning the SpA we find three models of management and control, and of internal insight organization: Traditional model, or latin model Dualistic model, or german model, Monistic model (of anglo saxon origin).

Traditional Model. There are three different bodies: The shareholders' meeting (ordinary and extraordinary). The board of directors The collegio sindacale The shareholders' meeting. The assembly of all shareholders, that can be ordinary or extraordinary. The differences are competences and rules about the functioning of the body. Called at least one a year by directors (they must call if there is the request of many shareholders as they represent at least 10%), these are the competences: Approval of the financial balance Appointment and removal of the directors, the sindaci and the chairman of the Collegio Sindacale; where foreseen, appointment of the outside auditor and auditing company Determination of the directors' and sindaci remuneration, unless stated in the memorandum of association Resolution on directors' and sinaci liability; Resolution on the other matters reserved to the shareholders' competency by law and on any authorizations required by the articles of association fo carrying out some of the directors' task. Resolution on any ruling of the meeting's works. The Extraordinary shareholders' meeting. The ex. Sh. Meeting has following competences: Statutory modifications: Appointment and replacement of the liquidators, and determination of their powers Resolutions on other matters expressly reserved to it by law. Percentage for due constitution and for resolution: The percentage for due constitution is the percentage of the company's capital which needs to be in attendance of the shareholders' meeting in order for the meeting to be considered duly constituted (valid). The percentage for resolution is the percentage of favourable votes necessary for a resolution to be taken. Ordinary meeting constitution: FIRST CALL: the percentage for due constitution is at least half of the company's capital the percentage for resolution is the absolute majority. SECOND CALL: The percentage for due constitution is any percentage of the company's capital represented at the meeting, the percentage for resolution is the majority of the represented capital. Extraordinary meeting Constitution: FIRST CALL: Percentage for due constitution is not foreseen, and the percentage for resolution is more than half of the company's capital, unless the articles of association requires a higher majority; SECOND CALL: The percentage for due constitution is more than one third of the company's capital. The percentage for resolution is at least 2 thirds of the capital represented at the meeting. However, a percentage for resolution of more than one third of the company's capital is necessary for resolutions about particular matters, such as, for example, change of the company's object, reorganization of the company and early dissolution. The management body (bord of directors). The directors carry out all operations necessary for reaching the company's purpose. Shareholder or non shareholders, but physical people. Board of directors or sole director. In case of directors or sole director. In case there is a board of directors, a chairman must be appointed. If permitted, the board of directors may delegate its own authorities to an executive committee or to one or more managing directors. Not all authorities of the board of directors can be delegated to the executive committee or the managing directors; in particular, among others the drawing up of the financial statement project

may not be delegated. Appointment and removal of directors. Appointment by the ordinary shareholders' meeting, except for the first directors, appointed in the memorandum of association. Three financial years but they may be appointed again unless differently stated in the articles of association. Directors may be removed by the shareholders' meeting at any time, even without a justified reason. In the latter case, however the removed director has a right to recovery damages. Directors must provide for registration of their appointment at the register of enterprires within. Prohibition of competition. Directors may not exercise activities in competition. Etc... * Liability of directors. Liability to the company, to the company's creditors, to the shareholders of third parties. LIABILITY OF DIRECTORS: The directors must fulfil the duties imposed on them by law and by the articles of association with professional diligence. They are liable to the company if they do not and in this way produce damage to the company. The company's action for liability against the directors is insituted following a resolution of the shareholders' meeting. This resolution may be taken by the shareholders' meeting convened for the approval of the financial statement, even if the company's action is not indicated in the agenda. The company's action for liability falls into prescription 5 years from the date of termination of the director's office. LIABILITY TO COMPANY CREDITORS: Directors are liable to company creditors if they have violated their duty to preserve the integrity of the company's patrimony. In particular, creditors may bring an action against the directors if the company's patrimony proves insufficient to satisfy their claims. LIABILITY TO SHAREHOLDERS AND THIRD PARTIES: Individual shareholders or third parties may bring an action for liability against the directors when they have suffered damages in their personal sphere, as a consequence of negligence or fraudeltn actions of the directors. A typical example is that of the publication of a false prospect on the occasion of an increase of the social capital or of the company's listing at the stock exchange. The Collegio Sindacale. It's formed by Sindaci, which are in charge 4 years. They can be removed only with a justified reason. Sindaci are appointed (and also removed) by the Shareholders' meeting (ordinary). Also the appointment of Sindaci must be registered within 30 days in the register of enterprises. Collegio Sindacale carries out the following tasks: Controls compliance of law and the articles of association Controls the compliance of the correct managing and proper functioning of the company. In short terms they are people who control the company. In order to do so they have powers of control. Sindaci must fulfil their duties with professional diligence, they are liable of the truth of the statement and must keep the document which they know SECRET (they know secrets infos about the company), otherwise they damage the company. If they do so, they must repair damages. Controls also the company's accounts. Normally now the control of accounts is carried on by an outside independent company. The controls is to verify that are regular and the correct drawing of management facts in book keeping entries. To verify financial statement complies with the results of the book keeping entries. Express a final judgement on the FS. ACTIVITIES ON CONTROL ON ACCOUNTS: Control on accounts implies: Accertain, at least once in a quarter, the regular keeping of accounts and the correct drawing of management facts in the book keeping entries. The traditional model applies when there are not statutes saying something about another model. Dualistic Model. The shareholders' meeting.

 The management Council. That is the body who go verse the company. It's made by 2 or more directors (can be shareholders or not). It's appointed for the first time by the memorandum of association (the company contract), then they remain in office for max. 3 years and after the first management council there's the surveillance council That appoints management council. The surveillance Council. It's made by 3 or more members (shareholders or not). The first Surveillance Council is appointed by the company contract. After 3 years is the shareholders' meeting that appoints surveillance council. The Surveillance Council approves also the financial statement and it has the functions of the Collegio Sindacale. Monistic Model. The monistic model must be explicity foreseen in the articles of association. The shareholders's meeting. The board of directors. Management is entrusted to a board of directors, whilst control is exercised by a committee created within it and called committee for control and management. Within the latter, a management control committee is created as well. The determination of the number of members of the committee and their appointment pertain to the board of directors, unless there is a different provision in the articles of association. At least one of the members of the committee must be chosen among those enrolled in the roll of official auditors of accounts. All members of the committee must show up the requirements of independence mentioned above. Also in this case the above bodies are flanked by an outside auditor or auditing company. Social Capital of a SpA. Capital Increase against the Payment. Members pays in order to increase social capital. May be made only if previously issued shares have been fully paid in (the money are not just promised but paid). On the occasion of the increase, subscribers must pay to the company at least 25% of the nominal value of the share. The newly issued shares must be offered in option to the old shareholders, proportionally to the number of shares they already hold. The option right is excluded or limited in few cases: Hypothesis of the company's interest. In this case, the resolution must be approved by as many shareholders as represent more than half of the company capital, also in second or third call; In the Hypothesis of contributions in kind. Free Capital Increase The company capital may be increased by attributing to capital the reserves and the other funds registered in the financial statement provided they are disposable. The increase must be resolved by the shareholders' meeting. The newly issued shares must be assigned free of charge to the shareholders, proportionally to the number of shares they own. Instead of by issuing new shares, the capital increase may also be made by an increase of the nominal value of the shares in circulation. Reduction of the company Capital. The company capital may be reduced voluntary or for losses. Voluntary Reduction. Made either by release from the obligation to make the payments still due, or by capital reimbursement. The extraordinary shareholders' meeting is competent to resolve on capital reduction. Once the reduction resolution has been taken and deposited as the register of enterprises it is necessary to wait for 3 months for the resolution to be implemented. During this term, creditors may make opposition. Company capital reduction is potentially dangerous for company creditors, because it lessens the consistency of the company patrimony and it may be prejudicial to the regular development of the activity. Reduction for Losses.

Losses are relevant in two cases: Losses are in excess of 1/3 of the company capital, but not as heavy as to infringe the legal minimum Losses are in excess of 1/3 of the company capital and infringes the legal minimum. The directors or the management council must, without delay, convene the shareholders' meeting in order to take suitable provisions. If they fail to do so, the Collegio Sindacale or the surivellance council must convene the shareholders' meeting. Decisions. Shareholders' meeting may: Reduce the company Capital Postpone its decision to the shareholders' meeting convened in order to approve the financial statement of the following financial year. If the loss has not decreased to less than 1/3, the next shareholders' meeting must reduce the capital. If the loss infringes the legal minimum, reduction of the capital and, at the same time, increase of the same an amount exceeding the legal minimum, or alternatively the transformation of the company. Cases. In case nothing is resolved, a cause of company dissolution comes up, and the company automatically enters the state of liquidation. Case law by now agrees on the fact that equivalents rules are applicable in the hypothesis of total loss of the company capital: the shareholders' meeting may annul the company capital and at the same time resolve on its re-establishment. Patrimonial allotted to a specific business. The company may constitute one or more patrimonies, each one of which exclusively allotted to a specific business. The allotted patrimonies may not, altogether, exceed the 10% of the company's net patrimony. If the articles of association does not provide differently, the constitution resolution must be taken by the management body, at absolute majority of its shareholders. Societ in Accomandita per Azioni (sapa) In the SaPa there are two categories of partners: Limited partner General partners. Limited partners are liable within the limits of the part of capital they have subscribed, whilst general partners are managers and liable jointly and without limitation for the company's obligations. The name of the company must contain the name of at least one of the general partners, with the indication of s.a.p.a. If the name of a limited partners is included into the name of the company, the limited partner keeps the benefit of limited liability. Societ a Responsabilit Limitata (S.r.l.) In the Srl the partners are liable within the limits of the contributed quota, they are thus limitedly liable partners. The quotas of contribution to the s.r.l. May not be represented by shares, therefore the s.r.l. Must normally draw its risk capital from a restricted number of partners. Memorandum of association. Must be in the form of a public deed. It shall indicate: The anagraphical data of the partners who are physical people: The data apt to identify the partners who are physical people; The activity which is the company's purpose; The amount of capital subscribed and paid in; Other indications. The minimum company capital is 10thousands .

Contributions. Money, goods in kind, as well as performances or services. If the memorandum of association doesn't provide otherwise, the contributions are in money. In this case, at the time of incorporation at least 25% of the capital (or contribution) must be paid in at the bank. In case of goods in kind are contributed, they must be fully paid in at the time of subscription. If a performance or service is contributed, the obligation must be guaranteed for its full value by an insurance policy or a bank surety. In this case if the memorandum of association foresees it, the policy or surety may be replaced by the payment of a corresponding amount, as ball. Quotas of participation. The partners' rights are proportional to his quota of holding, unless yhe memorandum of association provides otherwise. The quotas of holding always unless the memorandum of association provides otherwise, are proportional to contributions and freely transferable by deeds among living and by succession because of death. If not the partner or his heirs may exit from the company. Exit of a partner. Exit cases: Change of the company purpose; Company transformation; Merger and splitting-up; Transfer abroad of the company's registered office; Other cases The memorandum of association may, furthermore, foresee other hypotheses of exit. Finally, exit is permitted at any time in the case of a company with unlimited duration, and may be exercised with a notice of at least 6 months; the memorandum of association may provide for a longer term of notice, not exceeding one year. Exiting partners have a right to reimbursement of their quota, proportionally to the companys patrimony. The value shall be determined on the basis of the market value. In case of disagreement, the evaluation is carried out by an expert appointed by the Court. Reimbursement may also take place through purchase of the quota by the other partners or a third party. If this does not happen, the reimbursement is carried out by using disposable reserves or, in lack of these, by reducing the company capital. If the above solutions are not applicable, the company is put into liquidation. Reimbursement must take place within 6 months from when the exit declaration was served to the company. Management of the company. Management is entrusted to one or more of the partner. The directors are appointed by the memorandum of association and subsequently by the members. The directors also have the power of general representation of the company. The directors are jointly liable to the company for damages; the director is not liable if proves to be without fault, or who in any way have provided for their dissenting opinion to be accertained. Control by partners. Partners who do not take part in the direction of the company have the following rights: Rights to obtain from the directors information assetsing the trend of the company's affairs; The right to inspect the company's books and the documents pertaining to management, also through professionals they trust.

International Sales Law.

(Vienna Convention) Introduction. We have two kind of sales in Italy: domestic and foreign. The convention of Vienna (1963)

regulates international trades. The Convention of Vienna was made by UNCITRAL (United Nations Commission on International Commerce). The rules of the convention entered in the legal system of the adopting countries and since that we found the same rules about international sales, so we can speak about uniform rules. Before the convention the rules about sales were very different from country to country and it was necessary to use a very expensive international lawyer in order to make a contract. Anyway many countries don't adopt the convention (i.e. UK) and the convention does not give rules in some matters. Before Vienna convention there was an effort to make an unique law: the two Deag (?) Conventions (in the middle of the 60s) but they were adopted only by civil law countries. Four Parts. The Vienna convention is made by 120 articles divided in: I. Sphere of application and general provisions II. Formation of the contract. III. Obligations for the parties. IV. Final Provisions (about aspects of international law): here indication of the authentic texts of the convention: Arabic, Chinese, English, French, Russian and Spanish. Italy adopted the convention with a Statute of the parliament of 1999 with an unofficial translation of the convention. Contracts subject to CISG. Vienna Convention governs: international sales of goods, of moveable between professionals.(i.e. Not the sell of a land, house). International Art. 1 The Convention applies to contracts sales of goods between parties whose places of business are in different States: a) When the States are parties of the Convention, (The Vienna convention applies also if the 2 parties are individual entrepreneur, they are from Italy but the place of business of one is Italy and of the other is Germany. It's important the place of business) or b) If only one of the 2 states is a contracting state, in this case, Vienna convention applies when the rules of private international law lead to the application of the law of a contracting state. International Private law. International private law is a set of domestic rules governing international relations, say ing which is the applicable law. An international relation raises an applicable law problem because many law are applicable at the same time. Concerning contracts a very important rule (Rome Convention about the law applicable to contractual obligations of 1980) establishes that the applicable law is the law chosen by the parties. Generally international contracts have a particular clause: - Art... - Applicable law This agreement is governed by the laws of ...If the parties choose the law of a Contracting State, the Convention applies automatically to the contract. i.e.: Two people (one from IT one from DE) married in SP that have a child in a travel in China. What is the applicable law? International Private law establishes that. Lacking choice of the parties If choice of the parties lacks, Rome convention establishes that the applicable law is the law of the contractual party who gives the characteristics performance, in other words the performance allowing the recognize the contract type. In the case of contract of sale, lacking parties choice, a special uniform rule the seller's law applies. Coming Back to Vienna Convention. It means that Convention Rules applies when parties have chosen them or the law of a Contracting

State. Lacking parties' choice, Vienna convention applies if the seller has his place of business in a contracting state. Sales Out of the convention. The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions. Vienna rules do not govern: Sale by auction Sale on execution or otherwise by authority of law; Sale of stocks, shares, investments securities, negotiable instruments or money; Sale of ships, vessels, hovercraft or aircraft; Sale of electricity; Governed Aspects. Vienna Convention governs only the formation of the contract and the rights and obligations of the seller and the buyer. It is not concerned with: A) the validity of the contract of any of its provisions or of any usage B) The effect which the contract may have on the property in the goods sold. Applicable domestic law regulates the capacity to contract and the consequences of mistake, gross unfairness, unconscionability and fraud, transfer of property. Party Autonomy Parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions. Parties can exclude Vienna Convention choosing a different local domestic law. The meaning of the choice is a question of contract interpretation. Every rule of the Convention can be altered or rejected by the parties, even by standard contract terms, as long as the requirements for their validity in domestic law are fulfilled. Interpretation of the Convention. Interpretation of the convention must consider its international character and the need to promote uniformity in its application and the observance of good faith in international trade. Questions concerning matters governed by this convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable on the basis of the rules of private international law. Summary It must be considered the international character and the need of conformity, then if there's a question concerning a matter governed by the convention which is not expressly ruled by the convention this must be solved in conformity with the general principles of the convention. Only if this principles are not existing it becomes possible to solve the problem on the basis of the rules of private international law. Scope of the provision. This provision is designed to safeguard unification of the law and to avoid a mixture of uniform law with domestic sales law, which otherwise would have resulted from interpretation and gap filling. There is a gap because Vienna convention doesn't say anything about eccessiva onerosit sopravvenuta in this case (Italian law) there's rescission of the contract if a party do not offer to the other party an equal modification of the contract or (UK law) the unlucky party must perform. Party's Act. Statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. If this operation is not possible, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other

party would have had in the same circumstances. Parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. The parties are considered, unless otherwise agreed, to have impiedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. Article 11. Vienna convention establishes that a contract of sale need not be concluded in or evidenced by writing ans is not subject to any other requirement as to form it may be proved by any means, including witnesses. 49. Art. 11 is a non-mandatory rule, so the parties may gree on other requirements concerning the form of the contract, or any declaration connected with it. Article 11. may also excluded by usages to which the parties have agreed or from any practices which they have established between themselves. It describes contract offer. A proposal for concluding a contract addresses to one or more specific people constitutes an offer if it is sufficiently definite and incidates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently define if it indicates the goods and expressly or implicity fixes or makes provision for determining the quantity and the price. A proposal other than one addressed to one or more specific people is to be considered merely as an invitation to make offers, unless, the contrary is clearly indicated by the person making the proposal. *see Vienna Convention slides*