The second law, as opposed to the general private law, is composed by a (sub)system characterized and unified by its own subject and logic. A typical example is labour law, where the general principles of contract law are undoubtedly intertwined with the relevance of the person of employee in the contract, which explains why the general principles of civil law are often adapted and modified. Since the so-called special laws (e.g. the consumer code derived from a variety of laws and regulations unified by the characterization of the consumer as beneficiary), when structured in a (sub)system, lose such specialty character, the issue is whether second law may be applied beyond the matters which it expressly regulates. The author maintains that where the second law is incomplete and unless it is expressly otherwise provided, it must be made reference to the general private law. Examples are deawn from the fields of labour, antitrust and consumer law. Moreover, it is not possible to apply the rules of a second law to another second law by means of analogy; rather, it is previously necessary to verify the (in)adequacy of general private law. For instance, one cannot «pass» from the second law of the consumer to the second law of the economically-dependent enterprise, in order to empower this one with the right to terminate the contract which the former expressly grants to the consumer.

Castronovo, C., Diritto privato generale e diritti secondi. La ripresa di un tema, <<EUROPA E DIRITTO PRIVATO>>, 2006; (2): 397-423 [http://hdl.handle.net/10807/21699]

Diritto privato generale e diritti secondi. La ripresa di un tema

Castronovo, Carlo
2006

Abstract

The second law, as opposed to the general private law, is composed by a (sub)system characterized and unified by its own subject and logic. A typical example is labour law, where the general principles of contract law are undoubtedly intertwined with the relevance of the person of employee in the contract, which explains why the general principles of civil law are often adapted and modified. Since the so-called special laws (e.g. the consumer code derived from a variety of laws and regulations unified by the characterization of the consumer as beneficiary), when structured in a (sub)system, lose such specialty character, the issue is whether second law may be applied beyond the matters which it expressly regulates. The author maintains that where the second law is incomplete and unless it is expressly otherwise provided, it must be made reference to the general private law. Examples are deawn from the fields of labour, antitrust and consumer law. Moreover, it is not possible to apply the rules of a second law to another second law by means of analogy; rather, it is previously necessary to verify the (in)adequacy of general private law. For instance, one cannot «pass» from the second law of the consumer to the second law of the economically-dependent enterprise, in order to empower this one with the right to terminate the contract which the former expressly grants to the consumer.
Italiano
Castronovo, C., Diritto privato generale e diritti secondi. La ripresa di un tema, <<EUROPA E DIRITTO PRIVATO>>, 2006; (2): 397-423 [http://hdl.handle.net/10807/21699]
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/10807/21699
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