Reform of the Italian Civil Code under review at the Senate
| Insights
Since March the 27th 2019, a government bill is being reviewed by the Justice Committee of the Italian Senate. If enacted, such bill will empower the government to enact delegated laws modifying the Italian Civil Code. Regarding Contract Law, the legislative framework of the bill is vast, whereas regarding Family Law and Succession Law, there will be a small number of changes which, nonetheless, will have a great impact on the Italian legal system.
A delegation criterion concerns the stipulation of agreements between partners, spouses and civil parties, aimed at regulating their personal and economic interests, also in anticipation of the possible crisis of the relationship, as well as the criteria for addressing family life and education of children. In this regard, the accompanying report explains that these are to be considered equivalent to those “prenuptial agreements” of Anglo-Saxon origin, which are nowadays considered to be in conflict with the provisions of Article 160 of the Civil Code and with the principle of the unavailability of rights arising from marriage”, without prejudice to the limit set by the criterion of respect of the laws which must be applicated, and of the fundamental rights of the human person, public order and morality. In this way the intention is to preserve the unavailability of marital status or part of a civil union and also to limit conventional regulation to available rights only.
In the field of inheritance law, it is envisaged a change in the legitime regulation, which is currently provided by arts. 536 et seq. of the Italian Civil Code. Such change will allow the transformation of the quota of the estate reserved to the legitime, into a part of the value of the estate at the moment of the opening of the succession. Furthermore, regarding Succession Law, it is envisaged the possibility of entering into agreements on future succession, currently prohibited pursuant to art. 458 of the civil code. Particularly, under certain conditions, “selling” succession agreements may be entered into. By such agreement, the heir may sell a part of the estate, limited to the devolution of specific “property” to specific successors specifically indicated. Furthermore, the prohibition of so called “waiver” successor agreements is lifted. By such agreements (unilateral or contractual) one may in advance waive the rights that may be due to him on a succession not yet open or on the assets that are part of it. In any case, the reserved share provided for in articles 536 et seq., and the prohibition of renouncing the rights of the legitime and the reduction claim (as long as the settlor or the donor is alive) are maintained. However, the delegation makes it possible to provide for the irrevocable renunciation also to the succession “in particular assets”, thereby promoting its circulation. Finally, simplified hereditary measures are introduced, in accordance with the European Certificate of Succession (ECS), introduced by Regulation (EU) n. 650/2012. All the above-mentioned changes have the objective of giving certainty to the legal affairs regarding assets of hereditary origin.
Regarding Contract Law, four out of the nine delegations provided, share the same “main theme”: the balance in the contract. During the negotiation phase, a mandatory obligation is envisaged, to be borne by the party who is aware of significant information “crucial to the consent”, to communicate this information to the other party when the other party ignores it and relied on the loyalty of the counterpart. Information concerning the value of the object of the contract is excluded. The actual implementation of such provision, will depend on its the coordination with art. 1429 of the Italian Civil Code. Furthermore, still in the context of the negotiations, another delegation suggests that the “distance between the parties”, the “surprise”, the “situation of dependence of one party on the other” are circumstances which, in the cases that will be provided by the Government, will possibly determine the invalidity of the contract, on a par with the “deceptive, aggressive or in any case unfair” negotiation practices. Considering such radical sanction as to impose invalidity of the entire contract, we ought to see how the Government will decide to implement this provision. Furthermore, a different provision also imposes invalidity of those clauses or agreements which contrast with the rights of the person having constitutional rank. In this case, however, the provision intends to keep the effectiveness of the contract, by possibly imposing the invalidity only of some of the clauses. In the same way, a further delegation envisages, in the event of supervened excessive onerousness of a contract due to exceptional and unforeseeable causes, the possibility for both parties to demand renegotiation according to good faith or, in the event of failure to reach an agreement, to request the adjustment of the contractual conditions before a court, so that the proportion between the originally agreed benefits is restored. Thus, in order to maintain the contract, the lawmaker hopes that the contractual balance will be restored.
In the field of liability, the delegations aim at coordinating the different types of liability which can arise regarding negotiations, contracts, and tort. Furthermore, it will be possible to claim damages which are non-economic, especially when constitutional rights are involved.
Finally, the bill envisages a relatively general power for the Government to introduce in the Italian system new contract structures, when they are socially accepted/generally practiced, as well as new warranties, considering also the relevant bank and financial best practices. Last but not least, for the first time in Italy, the government will have the power to enact delegated laws codifying the “trust”, to which can be currently applied only 1985 The Hague Convention.
The enactment of the final legislative decrees shall be “no later than one year following the entry into force” of the delegating law, and therefore the actual reform is likely to be implemented during the year 2020.