Riccardo Omodei Salè

The Functions of Property Rights under Italian Law

  • Abstract

Informations and abstract

Keywords: Property Rights; Right of Use; Non-Possessory Securities over Movables; Sale of Property with Retention of Title; Transfer of Ownership as Collateral; Charges; Revolving Pledges; Fiduciary Agreement; Mandate without Powers of Representation; Trusts; Acts of Destination.

This paper considers the issue of property rights from a functional perspective with the aim, on the one hand, of investigating how the three fundamental functions (enjoyment, security and administration) that can be associated with such rights are implemented nowadays under Italian law and, on the other hand, of establishing how the requirement of protection for property rights is reconciled with the need to guarantee efficiency within legal transactions. The analysis - which will involve an evaluation of highly disparate questions and institutes, from the ability to set aside the prohibition on the assignment of right of use (Article 1024 of the Civil Code) to the availability of non-possessory securities over movables, through to trusts and their relations with «acts of destination» (Article 2645-ter of the Civil Code) - will conclude with the assertion that, whilst Italian law may be said to have struck a balance between the two requirements mentioned above which, all things considered, is satisfactory, it still however needs to be reformed comprehensively in a way that modernises the sector of property rights, with particular regard to the security and administrative functions performed by those rights.

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