Legal Subjectivity (under Italian Law)

Introduction: natural persons and legal persons

The Italian legal system recognizes both natural persons, whose concept refers to human individuals, and legal persons, who are instead 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 aspects, like human individuals. For this reason, both phenomena are referred to as "persons," with the adjectives "natural" and "legal" then added to mark their substantive 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.

Legal entities: legal subjectivity and legal personality

Legal entities are organizations endowed with legal capacity, i.e., the ability to hold rights and duties in their own right. Entities may or may not have legal personality: independent of this, however, they are subjects of law, like natural persons. Legal subjectivity is thus the quality of legal subject, that is, the quality that designates one who is legally capable and as such a participant in the legal system. In other words, legal subjectivity is the possibility of being the center of imputation of subjective legal situations, such as rights, duties, etc.

Being a subject of law, the entity is by law a party to legal relations. This means that if the entity incurs a debt, the entity is liable for the debt with its own assets; acts performed in the name of the entity must be carried out by the entity's legal representative.

Although entities are subjects of law, therefore, not all entities are legal persons: only those that the law formally qualifies as such.

In the Italian legal system, legal persons include foundations, associations and committees that have legal personality under a special act of public authority. Also legal persons are corporations and cooperatives.

In contrast, unincorporated entities are unrecognized associations and committees and partnerships.

Although these do not have autonomous personality, they are nonetheless endowed with general legal capacity and can therefore be holders of rights and obligations. In contrast, legal capacity should be denied to all those organizational forms of persons or property that do not constitute unitary centers of legal imputation.

Legal persons (referral)

On the concept of legal person see: Legal personality (under Italian Law).

References

C. M. Bianca, Diritto civile, 1, La norma giuridica. I soggetti, 2° ed., Giuffré, Milano, 2002, in part. p. 311 et seq.;

P. Gallo, Soggetto di diritto, in Digesto Disc. Priv., Sez. civ., XVII, Utet, Torino, 1998, p. 576 et seq.;

G. L. Pellizzi, Soggettività giuridica, in Enc. Giur. Treccani, XXXVI, 1990.