A95322 Business Law

The course aims at helping students to develop ability and rework concepts and rules standing behind the institutions which are the subject matters of the course and apply them to concrete cases. 

The course aims at acquainting students with both fundamentals of Italian business law and a comparative approach between the rules and regulations applicable to the very same field of law within the common-law systems, so that they can understand how to approach differently each single civil-law or common-law institution of private law related to economics, especially as far as business contract law, business tort law and law of partnerships and companies are concerned.

Attendance is highly recommended and active participation of students during lessons is highly encouraged.

The course deals with an overall examination of the Italian private-law institutions related to economics.

Accordingly, Italian law of contracts and Italian partnership and company law are to be considered the core of the course.

Nonetheless, after a brief but due introduction to the Italian legal system, particular care to structure and content of contracts, partnerships and companies both in common-law and in civil-law jurisdictions is performed along the way, so that students can understand the distinctive general approach to business law in these two different kinds of legal systems.

Moreover, as the course aims at providing students with a proper approach to all business-law-related issues, tort law and especially entrepreneurial non-contractual liability is analysed too, along with all forms of different commercial entities available within the Italian territory and abroad, as well as all kinds of legal relationships that they can be created when activities are performed by entrepreneurs.

General Contents:

Part 1 – Introduction to the Italian legal system (prof. Alessio Reali)

Introduction to law in general

Nature and role of law

Concept of State and its organisation

Jurisdiction above States: e.g. European Union

Public law and private law

Provisions: structure, characteristics and sanctions

Construction, duration and enforcement of law

Introduction to Italian private law and its sources

The Italian Constitution. Rigid written constitutions v non-codified Constitutions

European Union legal sources

State laws and regional laws

Regolamenti and mores

The Italian Civil Code (ICC)

Private law relationships: the concept of legal acts, legal facts and negozio giuridico

Subjects of legal relationships: the distinction between physical and juridical persons Brief introduction to all entities provided for by the Italian private law

Part 2 - Juxtaposing civil-law and common-law jurisdictions in the field of private law (prof. Alessio Reali)

Different legal methods and sources of law

Case law v codes

The value of judicial decisions in civil-law jurisdictions and in common-law jurisdictions

The distinction between common law and equity within the common-law systems

Consequences in terms of rules governing law of obligations, fiduciary relationships and law of torts

Different legal approach to performance of business in general in common-law systems and in civil-law systems

Part 3 – Contract law (prof. Alessio Reali)

Introduction to a comparative approach between the rules of contracts available in civil-law jurisdictions and in common-law jurisdictions

Italian-law general rules for contracts analysed in comparison with common-law rules for contracts

Contract requirements

Agreement: offer and acceptance; termination of offer; irrevocable offer and opzione

Pre-contractual liability, gentlemen’s agreement and letter of intent

General terms of contract v unfair terms of contracts

Preliminary agreements

Causation and consideration compared

Object of a contract compared: section 1346 ICC and following against express terms, implied terms and exclusion clauses in common law

Forms for contracts

Ancillary terms of contract: condition and terminable contracts. Difference between conditions and warranties in common law

Construction of a contract compared

Privity of contract: third party rights and contracts on behalf of third parties compared

Assignment

Sham in contracts

Invalidity of contracts compared: void contracts, errore, violenza, dolo and rescissione against illegal contracts, mistake, duress, misrepresentation and undue influence

Performance of contracts: penalty clauses and remedies against breach of contracts compared: breach of contract, impossibilità sopravvenuta and eccessiva onerosità sopravvenuta against termination, rescission and frustration of purpose; damages related

Specific performance: section 2932 ICC against specific performance and injuction in common-law

Main business contracts available under both civil-law and common-law contract law

Sale

Agency

Lease

Leasing

Consumer contracts

Loan and other banking contracts

Insurance policies

Part 4 – Entrepreneur and entrepreneurial activity in general (prof. Andrea Moja)

Concept of entrepreneur

Different kinds of Italian entrepreneurs: imprenditore agricolo; imprenditore commerciale; piccolo imprenditore; imprenditore individuale; impresa collettiva and impresa sociale

Distinction between private and public entrepreneurial activity: the concept of impresa pubblica

General rules concerning entrepreneurs: the concepts of azienda, ditta, insegna, marchio and brevetto; rules for intellectual property rights; antitrust legislation; Companies Registry and consorzi

Consorzi and joint ventures compared

Performing entrepreneurial activities: entrepreneur, intellectual professional, independent contractor and employee compared

Project financing and securitization

Part 5 – Partnerships and companies (prof. Andrea Moja)

Introduction to the concept of Italian impresa collettiva and to the main differences between partnerships and companies in general

Partnerships

Definition of a partnership

Legal status of partnership and partners

Different kinds of Italian partnerships: società semplice, società in nome collettivo and società in accomandita semplice compared

Formation of a partnership

Assignment of goods and credits to a partnership

Registration of a partnership

Rights and duties of a partner

Partners and directors

Joint and separate administration of a partnership

Partners’ liability on debts: insolvency issues

Termination of a partnership relationship against single partners

Termination and liquidation of a partnership

Companies

Definition of a company

Legal status of a company

Different kinds of companies: società a responsabilità limitata, società per azioni and società in accomandita per azioni compared

Constitution of a company

Registration of a company

Assignment of goods and credits to a company

Company’s share-capital requirements

Company’s stakeholders: shareholders v bondholders

Directors and directors’ duties and powers

Companies’ meetings

Shareholders’ voting rights inside and outside companies’ meetings

Majority rules and minority protection

Termination of a company relationship against single shareholders

Termination and company’s winding up

Insolvency issues concerning companies

Part 6 – Tort law and non-contractual liability of partnerships and companies against third parties (prof. Andrea Moja)

Tort law in general

Applicable rules

Definition of a tort

Establishing tortious liability: duty of care, negligence, wrongdoing, causation, remoteness of damages

General defences to tort

Persons who can sue and be sued in tort

Italian employers’ vicarious liability (section 2049 ICC)

Italian liability for performance of dangerous activities (section 2050 ICC)

Italian liability for damages due to goods under custody (section 2051 ICC)

Italian liability for damages created by real properties (section 2053 ICC)

Italian liability from vehicles circulation (section 2054 ICC)

Rules for damages appraisal

Specific performance in tort law

Financial and non-financial damages

Liability of partnerships and companies under tort law

Tort law against companies and partnerships in general

Different kinds of business liability and different consequences on shareholders, bondholders and credit-holders in general

Business liability and environmental law

Covering entrepreneurial liability: insurance policies and company law

The first part of the course pertains to prof. Alessio Reali and shall consist of 30 hours personally held by the holder of the course.

The second part of the course pertains to prof. Andrea Moja and shall consist of 30 hours too.

Due to non-existence of a textbook on the subject matters of the case, as for the part of the program of the course taught by prof. Alessio Reali, paper materials will be provided for on a time-to-time basis.

As for the part of the program of the course taught by prof. Andrea Moja the following textbook will be the point of reference of the lectures: namely Marco Carone, Alessandro de Nicola, "Italian Company Law 1. Companies limited by shares", editor EGEA, last edition.

The exam will be oral and shall consist of two separate tests, one performed with prof. Alessio Reali and the other one performed with prof. Andrea Moja.

Final vote shall be registered by the holder of the course on the general basis of the average of the two votes received from each professor.