Papers by antonio albanese
Per i cento anni dalla nascita di Renato Scognamiglio, 2022
The essay aims to verify if and in what way the contractual freedom can be reconciled with the ju... more The essay aims to verify if and in what way the contractual freedom can be reconciled with the judicial review on the justice of the contract. From this perspective, the legal system cannot replace the will of the contracting parties, imposing or prohibiting a specific negotiating regulation deemed "just" or "unfair" a priori, but it can disapprove of those agreements that ex post are illegally imposed by the stronger party.
According to this logic, judicial control over private autonomy is admitted only in cases where any inequity reflects inequalities between the parties as one of them has wrongly taken advantage of it.
However, given that some disparity between the contracting parties is found in all exchanges, a rebalancing intervention cannot be general nor be carried out indiscriminately, but is legitimized only in the presence of certain normative situations that justify it rationally.
In these cases, contractual justice takes place in the form of protection of the weaker contractual party with respect to abuses of the stronger one that prevented him from effectively exercising his autonomy.
La pubblicazione dell'opera si è avvalsa di un contributo finanziario del Master in Diritto del l... more La pubblicazione dell'opera si è avvalsa di un contributo finanziario del Master in Diritto del lavoro e della previdenza sociale e del Dipartimento di Scienze giuridiche della Sapienza Università di Roma.
VALORI DELL'ORDINAMENTO VS. ESIGENZE DELL'EMERGENZA IN UNA PROSPETTIVA MULTIDISCIPLINARE a cura di R. Sacchi, 2022
The essay questions whether and to what extent the law of obligations provides balanced and consi... more The essay questions whether and to what extent the law of obligations provides balanced and consistent solutions to the exceptional difficulties in fulfilling the obligations caused by the pandemic emergency.
To this end, the direct application of the principle of solidarity is excluded and cannot justify judicial decisions that are incompatible with the letter of the law or contrary to the rationality of the system.
On the other hand, the use of equity is allowed as a criterion for integrating the legislative provision and implementing a rule that has already been positivized in accordance with its rationale.
From this perspective, the essay examines the temporary or partial impossibility of performance.
Liability is also excluded when the contingencies related to the Pandemic, while not making the performance absolutely impossible, have prevented the debtor from acquiring the means that he was required to use.
Without prejudice to the general principle according to which the lack of financial resources does not constitute an impossibility of performance, on the basis of an interpretation of the emergency legislation, the debtor exceptionally is not liable if he proves that the delay in the fulfillment of pecuniary obligations is not attributable to his fault, but to the observance of the measures for containing the infections.
Where instead the debtor has the money necessary to pay but, precisely because of the economic crisis caused by the pandemic, the payment would expose the survival of his company to the risk of serious and irreparable consequences, the duty of good faith, which also binds the creditor, prevents him from demanding timely fulfillment, indirectly excluding the debtor's liability.
EUROPA E DIRITTO PRIVATO, 2024
UNIVERSALITY OF ASSETS
The essay revisits Domenico Barbero's monograph on universality of assests... more UNIVERSALITY OF ASSETS
The essay revisits Domenico Barbero's monograph on universality of assests . It is a "classic" of law, which, as such, retains a contemporary relevance both in relation to the method followed by the author and the legal solutions proposed in it.
Regarding the first aspect, the author notes that the study of law cannot be reduced to an "analytical perspective," but must also capture the "empirical dimension" of legal science. In this sense, Barbero's argumentative method, while presenting elements typical of conceptual formalism, does not disregard a constructive dialogue with reality. On this basis, Barbero reconstructs the universality of assets as a unified category, not from an ontological point of view but a logical one, observing that it remains identical even when the individual things change.
Another modern aspect of Barbero's work is the conviction that legal rules are the result of precise political choices and not merely a superstructure of economic phenomena. However, Barbero's positivist approach does not prevail unchallenged, but is counterbalanced by the awareness that the applied rule, far from being an arbitrary manifestation of the legislator's will, must be an expression of the natural rationality of law.
EUROPA E DIRITTO PRIVATO , 2023
CONTRACTUAL EXTORTION: A CRIMINAL CASE LOOKING FOR PRIVATE PROTECTION
The essay deals with the is... more CONTRACTUAL EXTORTION: A CRIMINAL CASE LOOKING FOR PRIVATE PROTECTION
The essay deals with the issue relating to the invalidity of the contract extorted by threat, criticizing ordinance no. 17568/2002 in which the Supreme Court, applying art. 1418 of the Civil Code, affirmed the nullity of the contract due to contrary to the mandatory criminal law rather than its annullment due to duress. The essay reaches a different conclusion, arguing that nullity occurs only in cases where the violation concerns the agreed regulation and not the pre-contractual behavior of one of the parties.
EUROPA E DIRITTO PRIVATO, 2023
Mistake and omission of due information,
between rules of validity and rules of responsibility
T... more Mistake and omission of due information,
between rules of validity and rules of responsibility
The essay focuses on the links between mistake as a defect in consent and pre-contractual duty of information, both governed by functional rules to ensure that parties consciously exercise their freedom of contract.
From this perspective the author addresses the question of whether the expansion of information duties during negotiations also increases cases in which false or incomplete representation of facts by one of the contracting parties affects the validity of contract. In this regard, arguments can be drawn from the Italian legal system that exclude the relevance of the lack of due informations as misrepresentation causing invalidity.
On the other hand, it is admitted that violation of pre-contractual duty of disclosure, within certain limits, can give rise to liability even where the contract is valid. Both compensatory remedies and contractual invalidity, in fact, protect the party who was mistaken or not duly informed, according to different strategies and methods, balancing this protection with the interest of the counterparty, who relied on the validity of the contract or invested resources to obtain such information.
Given that validity and liability rules govern the same conclusion of the contract, it is possible to combine invalidity and compensatory remedies where the respective conditions for application exist. This two types of legal protection, in fact, even when they overlap, maintain their conceptual and functional autonomy, so that the remedies provided by the former do not obliterate those resulting from the violation of the latter.
EUROPA E DIRITTO PRIVATO, 2024
ABSTRACT
Mandatory rules in civil and labor law:
a method's matter.
Through a systematic comparis... more ABSTRACT
Mandatory rules in civil and labor law:
a method's matter.
Through a systematic comparison between the general law on contracts and the special regulation of employment relationships, the essay aims to identify the common characteristics of the mandatory rules in these two areas of the legal system and then to examine the differences and the reasons that justify the specialty of labor law.
With respect to the first question, mandatory rule is recognized as a unitary dogmatic category due to the invalidity, which derives from it.
In this sense, what all mandatory rules have in common is not the general or super-individual relevance of the protected interest, pre-existing legal regulation, but the way in which the law protects it, through remedies that are not within the power of disposal of either party.
Beyond this, a significant difference between the mandatory rules of private law and labor law depends on a different quality of public intervention.
In the first case, contractual justice is achieved through the intervention of the judge, who corrects ex post any imbalances that may result from abuses of contractual power.
In the second case, the personal interests of the employee are protected by preventing the exercise of contractual autonomy beyond the limits established ex ante directly by law.
Nuovo diritto civile, 2024
This essay explores whether and how the categories of civil law can address the new challenges ra... more This essay explores whether and how the categories of civil law can address the new challenges raised by the introduction of digital technologies, balancing the protection of individual rights with the collective interest in fostering innovations that improve social living conditions. In this context, general private law plays a pivotal role, providing the sanctions for regulatory violations with contractual invalidity and civil liability. The latter, in particular, establishes an efficient and rational system of disincentives that influences the economic and organizational resolutions of companies. Even before any harm occurs, indeed, companies take these risks into account in their decision-making processes. Civil liability is grounded in flexible legal concepts that can adapt to societal and legal changes. Specifically, the essay examines the concepts of “fault,” “custody,” and “defective product,” which serve as key criteria for assessing responsibility.
Malicious third-party applications can leak personal data stored in the Android system by exploit... more Malicious third-party applications can leak personal data stored in the Android system by exploiting side channels. TaintDroid uses a dynamic taint analysis mechanism to control the manipulation of private data by third-party apps . However, TaintDroid does not propagate taint in side channels. An attacker can exploit this limitation to get private data. For example, Sarwar et al. [2] present side channel class of attacks using a medium that might be overlooked by the taint-checking mechanism to extract sensitive data in Android system. In this paper, we enhance the TaintDroid system and we propagate taint in side channels using formal policy rules. To evaluate the effectiveness of our approach, we analyzed 100 free Android applications. We found that these applications use different side channels to transfer sensitive data. We successfully detected that 35% of them leaked private information through side channels. Also, we detected Sarwar et al. [2] side channel attacks. Our approach generates 9% of false positives. The overhead given by our approach is acceptable in comparison to the one obtained by TaintDroid ( 9% overhead).
The essay examines the question of whether the provision (by Bill no. 1151/2019) of a general inf... more The essay examines the question of whether the provision (by Bill no. 1151/2019) of a general information duty during the negotiations is consistent with our legal system. So it is only in cases where compensation, for damages resulting from its violation, isn't functional to correct the legal and economic balance established by valid contract and remains within the limits of the reliance interest protection. From this point of view the content of due information is determined considering the actual reliance of the person who deserves protection and the risks it raises for him and his assets.
Envisioning a future without food waste and food poverty, 2015
Europa E Diritto Privato, 2012
e alla promessa, che ogni bambino porta in sé, di un mondo migliore « Les mondes qui se sont levé... more e alla promessa, che ogni bambino porta in sé, di un mondo migliore « Les mondes qui se sont levés dans l'héroïsme se couchent dans la fatigue, pour que viennent à leur tour des héroïsmes nouveaux et des souffrances nouvelles, qui feront lever d'autres mondes »
The essay analyzes the criteria under which a contract may be void for contrast with a mandatory ... more The essay analyzes the criteria under which a contract may be void for contrast with a mandatory rule. In particular the judge has to check that legal protection is not left to the disposition of the parties, even where the law protects not the public interest, but the weaker party. In this case only the protected party is entitled to the action of nullity, but the contract cannot be validated and the nullity can be declared ex officio, by the judge. However the contract is void only when its content is contrary to the statutory prohibition and not when the law prohibits the mere pre-contractual behavior of one or both parties. In this sense art. 1418, co. 1, cod. civ. is an expression of a more general principle that distinguishes validity rules and liability rules.
... | Ayuda. Diritto europeo-Disciplina generale e discipline speciali delle invalidità: la nulli... more ... | Ayuda. Diritto europeo-Disciplina generale e discipline speciali delle invalidità: la nullità del contratto di lavoro. Autores: Antonio Albanese; Localización: Europa e diritto privato, ISSN 1720-4542, Nº 3, 2006 , pags. 917-946. ...
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Papers by antonio albanese
According to this logic, judicial control over private autonomy is admitted only in cases where any inequity reflects inequalities between the parties as one of them has wrongly taken advantage of it.
However, given that some disparity between the contracting parties is found in all exchanges, a rebalancing intervention cannot be general nor be carried out indiscriminately, but is legitimized only in the presence of certain normative situations that justify it rationally.
In these cases, contractual justice takes place in the form of protection of the weaker contractual party with respect to abuses of the stronger one that prevented him from effectively exercising his autonomy.
To this end, the direct application of the principle of solidarity is excluded and cannot justify judicial decisions that are incompatible with the letter of the law or contrary to the rationality of the system.
On the other hand, the use of equity is allowed as a criterion for integrating the legislative provision and implementing a rule that has already been positivized in accordance with its rationale.
From this perspective, the essay examines the temporary or partial impossibility of performance.
Liability is also excluded when the contingencies related to the Pandemic, while not making the performance absolutely impossible, have prevented the debtor from acquiring the means that he was required to use.
Without prejudice to the general principle according to which the lack of financial resources does not constitute an impossibility of performance, on the basis of an interpretation of the emergency legislation, the debtor exceptionally is not liable if he proves that the delay in the fulfillment of pecuniary obligations is not attributable to his fault, but to the observance of the measures for containing the infections.
Where instead the debtor has the money necessary to pay but, precisely because of the economic crisis caused by the pandemic, the payment would expose the survival of his company to the risk of serious and irreparable consequences, the duty of good faith, which also binds the creditor, prevents him from demanding timely fulfillment, indirectly excluding the debtor's liability.
The essay revisits Domenico Barbero's monograph on universality of assests . It is a "classic" of law, which, as such, retains a contemporary relevance both in relation to the method followed by the author and the legal solutions proposed in it.
Regarding the first aspect, the author notes that the study of law cannot be reduced to an "analytical perspective," but must also capture the "empirical dimension" of legal science. In this sense, Barbero's argumentative method, while presenting elements typical of conceptual formalism, does not disregard a constructive dialogue with reality. On this basis, Barbero reconstructs the universality of assets as a unified category, not from an ontological point of view but a logical one, observing that it remains identical even when the individual things change.
Another modern aspect of Barbero's work is the conviction that legal rules are the result of precise political choices and not merely a superstructure of economic phenomena. However, Barbero's positivist approach does not prevail unchallenged, but is counterbalanced by the awareness that the applied rule, far from being an arbitrary manifestation of the legislator's will, must be an expression of the natural rationality of law.
The essay deals with the issue relating to the invalidity of the contract extorted by threat, criticizing ordinance no. 17568/2002 in which the Supreme Court, applying art. 1418 of the Civil Code, affirmed the nullity of the contract due to contrary to the mandatory criminal law rather than its annullment due to duress. The essay reaches a different conclusion, arguing that nullity occurs only in cases where the violation concerns the agreed regulation and not the pre-contractual behavior of one of the parties.
between rules of validity and rules of responsibility
The essay focuses on the links between mistake as a defect in consent and pre-contractual duty of information, both governed by functional rules to ensure that parties consciously exercise their freedom of contract.
From this perspective the author addresses the question of whether the expansion of information duties during negotiations also increases cases in which false or incomplete representation of facts by one of the contracting parties affects the validity of contract. In this regard, arguments can be drawn from the Italian legal system that exclude the relevance of the lack of due informations as misrepresentation causing invalidity.
On the other hand, it is admitted that violation of pre-contractual duty of disclosure, within certain limits, can give rise to liability even where the contract is valid. Both compensatory remedies and contractual invalidity, in fact, protect the party who was mistaken or not duly informed, according to different strategies and methods, balancing this protection with the interest of the counterparty, who relied on the validity of the contract or invested resources to obtain such information.
Given that validity and liability rules govern the same conclusion of the contract, it is possible to combine invalidity and compensatory remedies where the respective conditions for application exist. This two types of legal protection, in fact, even when they overlap, maintain their conceptual and functional autonomy, so that the remedies provided by the former do not obliterate those resulting from the violation of the latter.
Mandatory rules in civil and labor law:
a method's matter.
Through a systematic comparison between the general law on contracts and the special regulation of employment relationships, the essay aims to identify the common characteristics of the mandatory rules in these two areas of the legal system and then to examine the differences and the reasons that justify the specialty of labor law.
With respect to the first question, mandatory rule is recognized as a unitary dogmatic category due to the invalidity, which derives from it.
In this sense, what all mandatory rules have in common is not the general or super-individual relevance of the protected interest, pre-existing legal regulation, but the way in which the law protects it, through remedies that are not within the power of disposal of either party.
Beyond this, a significant difference between the mandatory rules of private law and labor law depends on a different quality of public intervention.
In the first case, contractual justice is achieved through the intervention of the judge, who corrects ex post any imbalances that may result from abuses of contractual power.
In the second case, the personal interests of the employee are protected by preventing the exercise of contractual autonomy beyond the limits established ex ante directly by law.
According to this logic, judicial control over private autonomy is admitted only in cases where any inequity reflects inequalities between the parties as one of them has wrongly taken advantage of it.
However, given that some disparity between the contracting parties is found in all exchanges, a rebalancing intervention cannot be general nor be carried out indiscriminately, but is legitimized only in the presence of certain normative situations that justify it rationally.
In these cases, contractual justice takes place in the form of protection of the weaker contractual party with respect to abuses of the stronger one that prevented him from effectively exercising his autonomy.
To this end, the direct application of the principle of solidarity is excluded and cannot justify judicial decisions that are incompatible with the letter of the law or contrary to the rationality of the system.
On the other hand, the use of equity is allowed as a criterion for integrating the legislative provision and implementing a rule that has already been positivized in accordance with its rationale.
From this perspective, the essay examines the temporary or partial impossibility of performance.
Liability is also excluded when the contingencies related to the Pandemic, while not making the performance absolutely impossible, have prevented the debtor from acquiring the means that he was required to use.
Without prejudice to the general principle according to which the lack of financial resources does not constitute an impossibility of performance, on the basis of an interpretation of the emergency legislation, the debtor exceptionally is not liable if he proves that the delay in the fulfillment of pecuniary obligations is not attributable to his fault, but to the observance of the measures for containing the infections.
Where instead the debtor has the money necessary to pay but, precisely because of the economic crisis caused by the pandemic, the payment would expose the survival of his company to the risk of serious and irreparable consequences, the duty of good faith, which also binds the creditor, prevents him from demanding timely fulfillment, indirectly excluding the debtor's liability.
The essay revisits Domenico Barbero's monograph on universality of assests . It is a "classic" of law, which, as such, retains a contemporary relevance both in relation to the method followed by the author and the legal solutions proposed in it.
Regarding the first aspect, the author notes that the study of law cannot be reduced to an "analytical perspective," but must also capture the "empirical dimension" of legal science. In this sense, Barbero's argumentative method, while presenting elements typical of conceptual formalism, does not disregard a constructive dialogue with reality. On this basis, Barbero reconstructs the universality of assets as a unified category, not from an ontological point of view but a logical one, observing that it remains identical even when the individual things change.
Another modern aspect of Barbero's work is the conviction that legal rules are the result of precise political choices and not merely a superstructure of economic phenomena. However, Barbero's positivist approach does not prevail unchallenged, but is counterbalanced by the awareness that the applied rule, far from being an arbitrary manifestation of the legislator's will, must be an expression of the natural rationality of law.
The essay deals with the issue relating to the invalidity of the contract extorted by threat, criticizing ordinance no. 17568/2002 in which the Supreme Court, applying art. 1418 of the Civil Code, affirmed the nullity of the contract due to contrary to the mandatory criminal law rather than its annullment due to duress. The essay reaches a different conclusion, arguing that nullity occurs only in cases where the violation concerns the agreed regulation and not the pre-contractual behavior of one of the parties.
between rules of validity and rules of responsibility
The essay focuses on the links between mistake as a defect in consent and pre-contractual duty of information, both governed by functional rules to ensure that parties consciously exercise their freedom of contract.
From this perspective the author addresses the question of whether the expansion of information duties during negotiations also increases cases in which false or incomplete representation of facts by one of the contracting parties affects the validity of contract. In this regard, arguments can be drawn from the Italian legal system that exclude the relevance of the lack of due informations as misrepresentation causing invalidity.
On the other hand, it is admitted that violation of pre-contractual duty of disclosure, within certain limits, can give rise to liability even where the contract is valid. Both compensatory remedies and contractual invalidity, in fact, protect the party who was mistaken or not duly informed, according to different strategies and methods, balancing this protection with the interest of the counterparty, who relied on the validity of the contract or invested resources to obtain such information.
Given that validity and liability rules govern the same conclusion of the contract, it is possible to combine invalidity and compensatory remedies where the respective conditions for application exist. This two types of legal protection, in fact, even when they overlap, maintain their conceptual and functional autonomy, so that the remedies provided by the former do not obliterate those resulting from the violation of the latter.
Mandatory rules in civil and labor law:
a method's matter.
Through a systematic comparison between the general law on contracts and the special regulation of employment relationships, the essay aims to identify the common characteristics of the mandatory rules in these two areas of the legal system and then to examine the differences and the reasons that justify the specialty of labor law.
With respect to the first question, mandatory rule is recognized as a unitary dogmatic category due to the invalidity, which derives from it.
In this sense, what all mandatory rules have in common is not the general or super-individual relevance of the protected interest, pre-existing legal regulation, but the way in which the law protects it, through remedies that are not within the power of disposal of either party.
Beyond this, a significant difference between the mandatory rules of private law and labor law depends on a different quality of public intervention.
In the first case, contractual justice is achieved through the intervention of the judge, who corrects ex post any imbalances that may result from abuses of contractual power.
In the second case, the personal interests of the employee are protected by preventing the exercise of contractual autonomy beyond the limits established ex ante directly by law.