JUS - 2009 - 2

In recalling the first writing of Arturo Dalmartello, having as a subject moral damages in contractual relations, the author points out on the one hand the peculiarity of that generation of commercial law scholars, who were also trained in general private law; on the other hand the pathbreaking character of the writing, together with a strong capacity of elaboration of the subject.

Guido Rossi writes a tribute to Arturo Dalmartello who was one of the most influential scholars in Italian Commercial Law in the past century. The aim of the article is to sketch out an image of Dalmartello as a lawyer and a jurist who considered the Right as a problem of culture, and not only a simple technical element. Rossi shows deep admiration in describing Professor Dalmartello, his exhaustive knowledge and constant research of the fundamental law principles, and his great talent in the fields of right and in his profession as well.

The Author retraces Arturo Dalmartello’s writings on civil law, underlining the unitary concept of private law found in his works. This paper, in particular, focuses on the monograph La consegna della cosa, from which it arises, moreover, Dalmartello’s interest towards juridical circulation but, above all, the rigorous analysis method: inductive method, which starts from the examination and elaboration of the factual data and which leads to the concept, delineating characteristics and the nature.

The article explores the sixty-year activity in the area of commercial law (1933-1996) by Arturo Dalmartello, a man belonging to that group of scholars – formed in the period between the 1882 Commercial Code and the 1942 Civil Code – who have marked an era, probably unique, of commercial law studies. The pupil who has succeeded him as professor of Commercial Law at the Catholic University of Milan, after exploring the three main areas of Dalmartello’s research (company law, commercial contracts, banking and stock-brokers contracts), underlines that some of his theories, especially in the field of company law, are still of interest at the current time, dwelling at last on Dalmartello’s figure as «Teacher».

Remembering his frequentation for several years with prof. A. Dalmartello, both in the University and the professional activity, the author, drawing points from episodes and moments of the common life, trace a profile, felt and sharing, of the man and of the teacher.

Arturo Dalmartello was not only one of the most prominent scholars in commercial law. He was also an outstanding climber: among the peaks of the Dolomites he showed the same human and ethic qualities he put in his scholarly activity. Referring for further information to the book Arturo Dalmartello, Le montagne di un alpinista fiumano (eds. B. Pellegrinon and S. Rovis), this paper sums up the main traits of Dalmartello as a climber: from his first steps in Val Aurania, up to the conquest of the north wall of the second Campanile of Popera together with Emilio Comici, besides the time while he was the president of the Fiume division of the Club Alpino Italiano.

At the congress the character of Arturo Dalmartello was also remembered through an handwritten memoir which was discovered among his manuscripts after his passing. The short thought, biographical and prophetical, was read by his son Paolo and revealed the close connection of Dalmartello with his mountains, a relationship that pushed the author to develop a deeper reflection on the meaning of life.

The great figure of Arturo Dalmartello is described through the words of Sergio Scotti Camuzzi. His attention is focused on one of the most relevant Darmatello’s works I contratti delle imprese commerciali, which represents a collection of the scholar’s university lessons. The author is interested in finding the essential Dalmartello’s teaching and in outlining the fundamental principle that led his researches and his work: the idea that the Right is not only the textual law, but also procedure, practice and process.

The work aims to delineate, also in view of historical evolution, the basic characteristics of the power of representation in the existing Civil Code as derived from the influence of Paul Laband’s theory in this matter. We also analyze the more specific issues such as the necessary reception of the agent’s appointment, the issue of its possible revocation, as well as the phenomenon of apparent representation. These themes are then compared whit the peculiarities of the discipline of this subject in the commercial matters (Article 2203 and subsequent of the Civil Code).We highlight how, for the purposes of this analysis, it may be interesting the comparison whit §§ 45-48 of German HGB. Finally, the analysis focuses on the examination of the peculiarity of representative power of business factor (institore), the one of agent (procuratore) and the one of business clerk (commesso) with representative power: all analyzed in comparison with the general discipline of representation provided in Article 1387 and subsequent of the Civil Code.

Faced with the widespread decline of the concept of consideration in recent positions and in new European and international trends of contracts, the author recommends the recovery of such concept focusing on the field of business contracts. Moreover, the author underlines the peculiarity of actions of entrepreneurial autonomy with respect to single free exchanges: the former represent the enacting of a wider activity and programme in a context where the social-economic function of the single action becomes relevant. This requires the continual need of an objective control on the reason of business contracts, a great example is in EU antitrust law, suggested by the author as the surfacing point of a more generalised principle of the discipline of single free trading actions. The article concludes by referring to the thought of Arturo Dalmartello in the field of business contracts.

At present the contracts of the enterprise are considered a unitary figure by many authors. «Father» of the figure is Arturo Dalmartello. The work reminds of the principal elements of the Scholar’s thought about this subject: in particular, that He (in his last work) conceives the contracts of enterprise as a category in technical sense. Then, the work reflects upon this conception and upon the others which, afterwards, have considered the contracts of enterprise a category; and so it doubts that the figure can be a category and also that it can be useful in treating the phenomenon of the enterprise.

The aim of this essay is trying to find out a line of continuity between the study made by Dalmartello some decades ago about the «contracts of the commercial firms» and the doctrine of the «third contract», which has been recently proposed and investigated by a group of Italian scholars. The starting point is the systematic placing of the contracts between commercial firms within both the frame of the Civil Code and the studies made in the Italian legal culture. This latter really represents a particularly difficult issue, which has however rarely drawn the attention of the scholars specialised in «civil law» (in narrow sense); on the other side, some notable scholars engaged in the area of «commercial law» has tried to develop the above cited intuition of Dalmartello. The main point of the analysis is the speciality and autonomy of commercial law with respect to the Italian Civil Code which has unified the two different systems of rules (civil and commercial law). Further, the new laws and rules, coming from the UE legislation and implemented in the national law, have made much more interesting this debate, in the light of an unusual and original perspective which aims to find out a connection between rules and principles about the contracts on one side, theory of the firm and the market on the other side. This is nowadays, and will probably be in the next future, the context of the discussions about the different categories of contracts – it is well known that the consumer contracts represent a consolidated new model of contract opposed to the traditional one, which is mainly governed by the general rules of the Civil Code – with the new concept of a so called «third contract»: a sort of «midland» (between the protection of the consumers and the traditional contracts) for contracts made by commercial firms and characterised by the asymmetric power of the parties; a circumstances which determines the need for a not entirely predictable intervention of the court in order to avoid and/or correct the prejudice deriving from the abuse of such asymmetric contractual power (defined by the law «economic dependence»).

Dalmartello’s paper Vendita di azioni con garanzia di una determinata consistenza patrimoniale della società che le ha emesse: the role of the parties’ will in the negotiation of company shares and in attributing relevance to the «quality» of the shares in relationship to the consistency and the composition of the primary goods that the negotiated shares represent – Dalmartello’s paper Società tipiche e clausole atipiche (il problema dell’autonomia contrattuale nel diritto delle società): the area of contractual autonomy in company law; the boundary line between the system of the internal relationships between shareholders (governed by the rule of contractual autonomy) and the regulation of the circulation of shares and of the liability of company obligations (governed by the company law special rule of the compulsory typicality) – Dalmartello’s figure as «Teacher» of the profession of lawyer: the role of culture.