The constitutionalisation of private law in Italian and Maltese law of obligations : a bridge between legal traditions?

Abstract

The research aims to analyze the ongoing process of constitutionalisation of Private law in several European countries, whose potential for expansion may lead to a progressive convergence of the Civil and Common law traditions, possibly leading to the constitutionalisation of private law in any legal system and the generation, aside from Common and Civil law systems, of a "third family" with autonomous characters. The thesis is developed in five chapters, dealing with various regulatory and sistemi aspects: 1) Fundamental rights – structure of the system – sources of the law – comparing different techniques for applying constitutional rules in the relationships between private citizens. 2) The evolution of contract and tort law in Italy in relation to French, German and other European legal systems. This chapter looks at how (a) contract law evolved from the 19th century dogmatic approach to the modern constitutionalization of private autonomy (Italian system, European system) and (b) tort law developed under the influence of human rights to embrace concepts such as danno biologico and danno esistenziale. 3) The role of general clauses and judicial oversight in standardizing and harmonizing the exercise of subjective rights in different national legal systems; with particolar reference to the institute of abuse of rights, as an instrument to adjust the system to the supreme value of human rights. 4) The characteristics of English contractual and liability. The impact of the recognition of fundamental rights in the legal system and the prospects for rapprochement with respect to models of civil law: towards the road of the "hybridity". 5) The development of the Maltese legal system: from a juridical anomaly to a member of the “third legal family”; the Civil/Common law divide as an obstacle to the constitutionalisation of private law in relation to Maltese contract and tort law. The prospects of Constitutionalisation of Maltese Private law.