The article concerns two important problematic profiles of the category of figurae iuris which,
following the Roman tradition, is formed of the so called real contracts. The first profile affects the
shape to be given, in the European Contract Code, Book II, now being drawn up by the Academy of
European Private Lawyers, to depositum, contractual sequestration, commodatum and mutuum. In
the light of an historical and comparative analysis of the matter and of provisions of the aforementioned
Code, Book I, a range of possible solutions is proposed, which goes beyond the mere alternative
between “real” and “consensual” contract. The second problematic profile is that of the liability
for damage, destruction or loss of the delivered item. Considered with particular regard to depositum,
this problem is mainly examined referring both to the provisions on contractual liability of said Code,
Book I, and to the French experience relating to the obligations de moyens and obligations de résultat.
Lavoro e valori: note sulla prospettiva assiologica di Luigi Mengoni
In the law and philosophy thought of Luigi Mengoni the subject of values and of their relation
to work is embedded in a systematic thought where the legal discourse is viewed as a discourse
linked to the law and to legal dogmatic (made up of inventio and demonstratio) and open to the contributions
of the other social sciences. While the Kantian formalism devalues values as objective
ideas, Luigi Mengoni assumes as theoretical option the perspective of the material ethic of values as
objective and knowable logic-material structures, and of the rationality of value judgements and of
the problem of justice. In political contexts of pluralism and competition of values the positiveness
scheme is re-conceptualised according to the axiological perspective which includes value judgements
socially accepted, both at the moment of the inventio and at that of (dogmatic) demonstratio. The ontological
status of values as objective ideas is logically connected with the assumption of value as a fact
of rationality, according to the congnitivistical hypothesis. According to Luigi Mengoni knowing values
has nothing to do with the knowledge of phenomena: it is rather based on the dimension of possibility,
on the logic (and judgement) of likeness, in connection with the Leibnizian thought. In particular,
with reference to costitutional rules values are modified by the secularisation process: indeed,
they represent points of view that are historically conditioned and legitimised by social-political consensus.
The evolution of labour law is strongly concerned with the emergence of values in the written
law, especially of ethic implication of catholic social doctrine, which is particularly analized by Luigi
Mengoni in his essays on social encyclicas.
I rapporti di lavoro tra status e contratto nella dottrina giuridica dei secoli XII-XIV: le figure di incerto confine
This article examines job relations between status and contract in the doctrine of medieval jurists.
It has got a central theme: the transition from status to contract, according to a very pregnant expression
of Henry Summer Maine. In the following pages we will analyse the particular condition of
some workers of XII-XIV centuries: ascriptitii, liberti, liberti ecclesiae, homines curiae, homines alterius.
A special attention will also be given to a famous dispute among the most important medieval
jurists about the possibility for a free worker to lease his labour strengths forever («an liber homo posit
locare operas suas in perpetuum»). The results of this research demonstrate how the transition
from status to contract is not easily realized in the medieval period but the jurists of this age play an
important role in the development of free negotiation: in fact they try to ensure dignity in the execution
of every kind of job.
La famiglia nella prospettiva della solidarietà orizzontale
An approach to family based on the principle of subsidiarity, according to the constitutional
framework, is focused on the empowerment of family’s capability to develop its own functions. The
author verifies examples and implications of such an approach throughout recent regional Acts, especially
in the fields of family policies and of social services, and finally analyzes some arising questions.
Stato di prevenzione v/ Stato costituzionale di diritto: un nuovo capitolo di una storia infinita (a proposito di una decisione della Corte Costituzionale Federale Tedesca sulla legge federale in materia di sicurezza dei voli)
The purpose of the essay is to analyze the rule 1174 of the Italian civil code. This article has
always been considered as the last remainder of the definition of obligation, an idea that was taken in
consideration by theorists during the ‘30s. As this idea was later put aside, also rule 1174 was then
considered by Italian jurists too much abstract, and was quite neglected. The essay underlines the importance of this rule, pointing out the fact that it identifies the two main features of the obligation –
the economic value of the performance and its relationship with a specific interest or advantage of the
obligee - putting two fundamental limits to freedom of contracts.
A proposito del «Corso breve di giustizia amministrativa» di Giorgio Berti. Presentazione del volume nell’ambito del Dottorato di ricerca in Diritto Amministrativo (Università degli Studi di Milano, 15 Maggio 2006) Interventi di F. TRIMARCHI BANFI e V