The essay deals with the attraction of personal rights into the sphere of private autonomy. First, it offers some clarifications on the issue of Drittwirkung, i.e., the reflection (direct or indirect) of constitutional principles in private law. Then, it distinguishes the two main instruments that make the negotiation of non-patrimonial rights possible. On the one hand, there are contracts. On the other hand, there are negotiations outside contracts, which often happen through unilateral acts. Having clarified this, the essay addresses the related problem of availability and unavailability, which is a category expressly relevant in the Italian Civil Code regarding non-patrimonial rights. This problem calls also into play the tension between the market and human dignity as a value that may suffer either from its overload or its undervaluation. Finally, the essay focuses on two areas where the negotiation of personal rights happens: family law and the right to health.
Nicolussi, A., Autonomia negoziale dal contenuto non patrimoniale, in Carapezza Figlia, G., Frezza, G., Virgadamo, V. P. (ed.), «La personalità umana nell’ordinamento giuridico» di Pietro Perlingieri, cinquant’anni dopo. Atti del VI Convegno SISDiC Sicilia, 5 e 6 novembre 2021, Edizioni Scientifiche Italiane, Napoli 2023: 179- 200 [https://hdl.handle.net/10807/284276]
Autonomia negoziale dal contenuto non patrimoniale
Nicolussi, Andrea
2023
Abstract
The essay deals with the attraction of personal rights into the sphere of private autonomy. First, it offers some clarifications on the issue of Drittwirkung, i.e., the reflection (direct or indirect) of constitutional principles in private law. Then, it distinguishes the two main instruments that make the negotiation of non-patrimonial rights possible. On the one hand, there are contracts. On the other hand, there are negotiations outside contracts, which often happen through unilateral acts. Having clarified this, the essay addresses the related problem of availability and unavailability, which is a category expressly relevant in the Italian Civil Code regarding non-patrimonial rights. This problem calls also into play the tension between the market and human dignity as a value that may suffer either from its overload or its undervaluation. Finally, the essay focuses on two areas where the negotiation of personal rights happens: family law and the right to health.
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