SECOND PART OF OUR

PROGRAMME
Selecte Natural and legal personality. Associations and
foundations
d civil Property and real rights. Ownership
law
Contracts: physiological and pathological aspects
topics:
Obligations: sources and performance

Family and general principles of succession law

 CONTRACTS

■ General category -> «legal act»

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

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

■ Real effects -> transfer of property

■ Personal effects -> create obligations

(e.g sale)

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

sufficient (delivery is a consequential obligation)
 MULTIPLE SALES

■ Movable assets: «Possession is

nine tenths of the law»

■ Immovable assets and real

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

1) Agreement of the parties (the person who made the

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

[ Initial term/condition precedent vs final term/condition

subsequent ]
 INVALIDITY OF THE CONTRACT

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

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

Power of attorney (procura)

INTERPRETATION OF CONTRACTS
How to resolve ambiguities and contradictions?

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

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

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

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

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

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

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

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