Copyright (c) 2011 All rights reserved. http://works.bepress.com/andrea_bortoluzzi Recent documents in Andrea Bortoluzzi en-us Thu, 24 Feb 2011 08:45:27 PST 3600 http://works.bepress.com/andrea_bortoluzzi/7 http://works.bepress.com/andrea_bortoluzzi/7 Wed, 26 Jan 2011 08:51:14 PST The procedures followed by Italian Lawmakers and Pubblic Offices largely ignore the Constitution principles concerning the right of the Government to tax citizens.The State is forced by necessity to meet social expenditure (and to fund the network of power and patronage associated with that spending )as well as to radicalise its taxation by costantly stepping up its effort in order to favour the raison d'état instead of democratic procedures Andrea Bortoluzzi Enterprise Law Tax Law http://works.bepress.com/andrea_bortoluzzi/6 http://works.bepress.com/andrea_bortoluzzi/6 Sat, 12 Dec 2009 06:52:31 PST The title of the paper refers to the instruments for devolving an estate that offer alternatives to the will, allowing the settlor to exercise autonomy in the disposal of assets, in other words to derogate from the discipline of the successione legittima (legal succession: forced inheritance by the operation of law in the event of intestacy or the invalidity of a will or when the will disposes of only part of an estate) and, where this is allowed, from that of the successione necessaria (forced inheritance by the operation of law protecting the interests of the relatives of the deceased (ascendant, spouse, descendant) if the will ignores their rights or if the deceased’s assets have been transferred to other persons during his lifetime by other legal instruments, circumventing the legal rules of forced inheritance). Rather than tackling the theme by looking at the rules of positive law and how they apply to individual cases, I have preferred to adopt a different stance and to start by considering the practical requirements of individuals in relation to positive law. In truth, the title reflects both sides of the law – positive and customary – since a system of fair institutions is always based on the conjunction between the two sides of the law: the formal and the procedural, the informal and the customary. If there exists a practice that tends to regulate succession in ways other than by the legal forms (and exist it does), this is because there are criticalities in the present point of equilibrium. Andrea Bortoluzzi Enterprise Law http://works.bepress.com/andrea_bortoluzzi/5 http://works.bepress.com/andrea_bortoluzzi/5 Fri, 12 Sep 2008 06:13:38 PDT The introduction of the institution of the ‘Amministrazione di Sostegno’ into Italian law abandons the model of subjectivity handed down by tradition; indeed, it deconstructs it. In its aim of protecting, with the least possible limitations, the personal capacity of persons wholly or partially deprived of autonomy in performing the functions of everyday life, this new institution delineates a person no longer in abstract terms but as a person of flesh and blood, one whose relationship is not with the State but with the society of which he is a member. His society is considered in terms of its potential to provide for the interests of that person, whose power over things is no longer covered by the right to a legitimate interest under private law, and whose will is diminished by the propensity to inaction, let alone the lack of ability to act. The law on Carership calls for a deconstructive approach to the the concept of the so called soggetto di diritto – the person having legal capacity. This, then, is something entirely new. The Italian Constitution and its values have entered into the Civil Code, together with the interests established by the EC Treaty.And, together with these, there is the concept of the person (article 2 of the Italian Constitution uses the far more lapidary word, ‘man’) as clearly distinct from the concept of the soggetto di diritto or legal entity, or its predicates (legal capacity, capacity to act, natural capacity), implemented in the fullness of his prerogatives, not just social but also economic. On the assumption that each subject has personal capacity, ‘care’ consists of exercising vigilance to ensure that he is in a position to provide for his own interests. If this were not so, his freedom of choice as protected by article 2(2) of the Consumer Code and Directive 2005/29/EC on misleading commercial practices between traders and consumers in the internal market could be limited by its partial or total exclusion from the market pursuant to the provisions on the Amministrazione di sostegno (and now, under article 11(2)(b) of Directive 2005/29/EC, by means of an appropriate judicial measure ordering the cessation of the unfair practice). The judicial measure limiting such a capacity will be based on a principle that can be used to measure personal capacity in terms of the efficiency of the choices made by the consumer agent on the market, which comes under Community Law and under Italian law, the principle of proportionality The principle that underlies the system of carership, in particular in § 1896.2 and § 1901 and of the German Civil Code with regard to the sub-principles of necessity, in § 1896.2 (carership does not take place if the disability can be catered for by other social services) and adequacy, in § 1901.3 (the carer must comply with the wishes of the person under carership provided that this does not conflict with the latter’s welfare and is not excessively onerous on the carer), together with a general principle of self-determination and protection of the rights of personality in § 1903.2 (the right to contract a marriage, register cohabitation and make testamentary provisions and provisions for death, and to make declarations of will not requiring the approval of the legal representative). The principle of proportionality should be applied according to the body of law on carership, having regard to the limits placed on the beneficiary, the foundation for which is to be found in article 407(2) of the Italian Civil Code, which states that there must be comparability between the interest of and need for the person’s protection and that person’s own needs and wishes. This principle should be applied according to the sub-principles derived from German public law tradition: necessity (the limitation must be such that there exists no other measure less restrictive of the beneficiary’s personal capacity that would pursue the same preset objective); adequacy (the objective can be pursued only by recourse to that limitation); and proportionality in the strict sense of the term (there must be a proper proportion between the choice of the limitation of the beneficiary’s personal capacity and the soundness of the reasons justifying that limitation).This principle should not be applied mechanically or mathematically (merely by assessing the ‘costs and benefits’), but the judge and the medical practitioner required to support the judge's decision (article 407 of the Civil Code) should take account of the principles of the Constitution and the EEC Treaty as they relate to the protection the personality and dignity of the human person (articles 2 and 3 of the Italian Constitution and articles 136, 137 and 153 of the EEC Treaty). The dignity and personality of the human person, therefore, are the subjective counterweights in what might be a mechanical and objective manner of applying the principle of proportionality. In this case, it could be said that it is a principle of just and personal proportionality. Andrea Bortoluzzi Civil Law http://works.bepress.com/andrea_bortoluzzi/4 http://works.bepress.com/andrea_bortoluzzi/4 Wed, 30 Apr 2008 09:56:23 PDT “A decision of the Court of Cassation of 28 February 2008 has examined the question of the legitimacy in Italy of a scale of charges for notarial services that sets minimum fees, in the light of the provisions of the EC Treaty regulating free competition, The Court not only rules on the disciplinary liability of a notary not complying with the minimum scale of fees but also establishes a principle of law to the effect that notarial services are extraneous to the market for professional services, Such a principle is truly revolutionary because it establishes an interest of the notary as an individual and of the bodies representing the class of notaries in operating outside a competitive context, an interest that can be protected by seeking damages in the courts.” Andrea Bortoluzzi Consumer Protection Law http://works.bepress.com/andrea_bortoluzzi/3 http://works.bepress.com/andrea_bortoluzzi/3 Wed, 16 Apr 2008 09:45:06 PDT A note of warning: this is a personal essay, calling for a conversational relationship between writer and reader, established here by quotations from the classics and their modern readers, without alluding to mass culture. Europe is broadening its confines, and jurists are asking themselves questions about the roots of a possible common European law. Italian academics are tackling the problem by seeking an answer to the issue of whether Roman law might be the basis for such a common law.On the one hand, there are those who, like Attilio Guarneri, see Roman law as the precursor of a uniform European law, predicated on the predominance of common law.On the other, there are people, like Pigi Monateri, Tomasz Giaro and Enrico Somma, who observe that Roman law does not correspond to a unified concept of Western law and deconstruct it into a plurality of the laws of which it is made up, not just Latin but Hellenistic, African and Syrian as well. These scholars maintain that the unitarian idea of a Roman law as a purely Western law is revealed to be a historical falsehood, based on dogma that is open to confutation when one examines the multiplicity of its institutional sources.It is, then, only by patient reconnaissance and comparativistic reconstruction, taking into account the multiplicity of contaminations, influences and cross-breeding of the different systems, that certain legal principles can be constructed based on a common terrain, despite their unshakable diversity.In this essay, the aim is to tread a different path, in other words to look at Roman law not as a junction or point of intersection for several systems, but as a single system based not on just one source of production of law but on several formative factors.Roman law is the first example of law that is the outcome not of a central but of a disseminated power. The work of deconstructing and reconstructing Roman law, the first example of global law, has been done with the help of an essay by Jacques Derrida entitled Et cetera (and so on, und so weiter, et ainsi de suite, und so überall, etc.). That work has proceeded through a critique of the comparative method, the anti-historicist method, multicultural dogmatics, the literary practice of small cultures, the academic musical practice of repeaters and the infantile practice of neo-devastators, scientific practice as the creator of monsters, muticulturalist sociological practice, and hyper-compositive artistic practice, until it finally comes to a concept of Roman law that is faithful to its historic value.The reading of Roman law as the fruit of a disseminated power occurs in the seventeenth and eighteenth centuries, in other words during the development of a pre-revolutionary State..And it is that very reading by modern authors of the experience of the seventeenth century on which a concept of legality is founded, leading either to the belief that Roman law has been the first experience of unitarian law, the outcome of a centralised power, or to the idea of a multi-state law that is the outcome of several experiences of legal systems, as in post-modern critical thought.In this essay itself, starting with a rereading of the thinking of Schmitt and Benjamin on this subject, the point of arrival, on the contrary, is a unitarian concept of law that departs from the idea of a single centre of production and attribution.The global law inherent in disseminated power, therefore, does have its roots in Roman law as deconstructed and reconstructed in the essay. Andrea Bortoluzzi Comparative Law http://works.bepress.com/andrea_bortoluzzi/1 http://works.bepress.com/andrea_bortoluzzi/1 Fri, 11 Jan 2008 06:49:24 PST This Article traces the path taken by legal subjectivity in Italian law, through its decostruction from the citizen to the consumer and then discusses the source of contractual disparity, which is a concept strongly influenced in Community law by the German conception of the contract. This “relational concept” calls for the contractual equilibrium achieved by the parties to be subject to a test to determine whether it complies with predetermined criteria of justice but restrictive measures may not impose excessive limits on the freedom of the individual and must therefore be based on the principle of reasonableness. The principle of proportionality, based on the three sub-principles of adequacy, necessity and proportionality, is the most appropriate judicial criterion for monitoring State intervention in the field of a coordinated economy and is common to the whole of European legal experience: it has entered by the indirect route through the concept of contractual imbalance in the field of domestic civil law, but it is also a principle inherent in administrative action. The monitoring of the unfairness of a clause by reason of a breach of the principle of proportionality becomes the ratio competentiae determined by each individual Member State’s law transposing Directive 93/13/EEC. The Article goes on to discuss the principle of proportionality and civil law and then to consider the contaminations of the principle in the directive. The Article ends by looking at the application of the principle under consumer law in Italy, where the economic freedom of the seller or supplier in consumer contracts is subject not to State-imposed normative limits but rather to judicial assessment based on economic efficiency and compliance with the principles of fair dealing and trust (good faith). Andrea Bortoluzzi Comparative Law Consumer Protection Law