Legal personality (under Italian Law)

Introduction: natural persons and legal persons

The concept of legal person is one of the most controversial concepts in civil law. If, in fact, the notion of natural person is peacefully referred to human individuals, legal persons, on the other hand, are different entities, phenomena of law.

Identifiable in the legal world are certain phenomena which, although different from human individuals, are treated by law, at least in certain specific and essential respects, like human individuals. It is precisely for this reason that both phenomena are referred to as "persons," with the adjectives "natural" and "legal" then added to mark their substantial difference. In the juxtaposition of adjectives, it is thus made clear that while human individuals have their own, autonomous existence outside of law, in the physical world, the phenomena referred to as "legal persons" exist only because there is law and as a function of law.

In addition, the picture is further complicated by the fact that not all phenomena that are referred to as "legal persons" are always the same, but rather the list of legal persons varies depending on the system and even within the same system.

The concept of legal personality in Italian law and doctrinal debate

According to the meaning traditionally attributed to the concept of legal person, if an entity has legal personality, it means that it constitutes an autonomous subject of law, that is, a subject of law distinct from the persons of which it is composed and third to them. Thus, the legal person is the entity endowed with general legal capacity (as the capacity to be the holder of all legal positions related to legally relevant interests) and perfect patrimonial autonomy (it alone is liable for the obligations undertaken).

When, on the other hand, an entity does not have legal personality, it means that it is resolved in the plurality of its members and that the rights and obligations of the entity are nothing but the rights or obligations of its own members.

The idea that entities other than natural persons can enjoy legal capacity and themselves be "persons" is widespread in all modern legal systems. However, it is transposed with difficulty in legal thought. Therefore, various theories have been proposed over time to provide an explanation for the concept of legal personality. The best known are the theory of fiction and the theory of organic reality.

According to the first (fiction theory), legal persons would not have their own subjective reality, but are regulated "as if" they were persons. It is linked to the anthropomorphic preconception that pushes for attributes corresponding to the human person in the legal person.

In contrast, the opposite organic theory, also linked to the anthropomorphic preconception, attributes to legal persons an existence in the real world totally similar to that of natural persons. According to this theory, therefore, corporate entities present themselves in the world as organisms that, like natural persons, express their own will and act through their organs.

However, these theories have been superseded by the more recent approach, for which the reality of legal persons must be admitted on the basis of what is established by law because it is the law that decides who its recipients are (legal reality theory, advocated by F. Ferrara). Regardless of their possible existence outside the law what matters then is only what the law deems relevant for its purposes.

On the other hand, the modern linguistic conception of the phenomenon, supported in particular by F. Galgano, sees in the concept of legal person the synthesis of a special legal regime, dictated by the legislator in relation to the aggregated collectivity. Through the analysis of normative propositions, therefore, it is argued that the term "legal person" does not express any real data of experience but constitutes only a linguistic formula, of synthesis precisely, which summarizes the specific legal treatment reserved by the legislator for the organized collectivity and encompasses the rights and duties that characterize natural persons.

Phenomena. Specifically, companies "with legal personality" and companies "without legal personality"

Not all entities are legal persons: such are only those that the law formally qualifies as legal persons. Such are, in particular, foundations, associations and committees that have legal personality under a special act of public authority. Also legal persons are corporations and cooperatives.

With specific regard to companies, the Civil Code distinguishes between corporations with and without legal personality (Article 2331, paragraph 1, Civil Code as well as Articles 19 and 145 of the Civil Code). Thus, this is a co-extensive distinction with that between partnerships and corporations. This may lead one to believe that only corporations are "third parties" to their partners.

However, the legal status of partnerships is not always consistent with the idea that they are resolved in the plurality of partners. The distinction between partners and partnerships manifests itself particularly in the areas of representation in court (Art. 2266(1) Civil Code); corporate assets (Art. 2270 and 2305 Civil Code); and liability for corporate obligations (particularly with regard to the liability of partners in limited and limited partnerships).

Therefore, what in companies with legal personality may appear as a consequence of otherness with respect to the partners therefore ends up being present in companies without personality as well. An analysis of the legislative data of the Italian legal system then concludes for the substantial neutrality of the concept of legal person with respect to the legal status of the company. Any internal differences between types of companies should be more properly traced to the specific discipline of the type and not instead to the mere fact of the presence or absence of legal personality.

The notion of legal subjectivity (referral)

On the notion of legal subjectivity see Legal Subjectivity (under Italian Law).

References

C. M. Bianca, Diritto civile, 1, La norma giuridica. I soggetti, 2° ed., Giuffré, Milano, 2002, in part. p. 321 ss.;

F. Ferrara, Le persone giuridiche, in Trattato di diritto civile italiano, diretto da F. Vassalli, vol. II, tomo 2, Torino 1956;

F. Galgano, Delle persone giuridiche, in Commentario del codice civile, a cura di A. Scialoja e G. Branca, Bologna-Roma, 1969;

F. Galgano, Diritto commerciale, 2, Le società, 18° ed., Zanichelli, Bologna, 2013, p. 33 ss.;

E. Gliozzi, Persona giuridica, in Treccani Online, available here;

G. Meruzzi, Complemento di diritto commerciale, 1, Impresa, società in generale e società di persone, 2° ed., Egea, Milano, 2019, p. 163 ss.