Professor Franco Angeloni gives legal opinions relating to Italian law both in English and Italian.

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JUDICIAL PRECEDENTS AND THE PREDICTABILITY OF JUDICIAL DECISIONS

At the present time it is of vital importance both for the common citizen and for economic operators to be able to predict, in a sufficiently reliable fashion, the judicial decisions which will be handed down on one or more legal matters, both in the event that there is a pending lawsuit or not.

In the first case, a knowledge of how the dispute will probably be resolved will allow the interested party to act in the most advantageous way to his interests, continuing the action if a positive result is foreseeable or by doing the utmost to find a settlement in the event of a likely negative outcome.

In the case that there is not a pending lawsuit, the person interested in the legal opinion will be able to evaluate whether or not to initiate legal proceedings so as to defend his interests, or indeed evaluate if it is necessary or opportune to change his behaviour in order to avoid liability towards a third party.

In the Italian judicial system a fair degree of predictability exists with regard to judicial decisions. The reason for this lies in the fact that even though the binding nature of precedent is not formally operative as in other Common Law countries, Italian judicial decisions are normally influenced by the practicality of the so-called “argomento autoritativo” (from the Latin “argumentum ab exemplo”). This expression means that judges abide by what other judges have decided or the interpretation of legal doctrine by legal academics, amongst whom University Law Professors have considerable importance.

Interpretation of legal doctrine, which is also carried out through the giving of legal opinions, has a notable importance. Such interpretation permits the formulation of predictions on as yet unexplored legal issues for which judicial decisions are not available or in cases where judicial precedents are not easily understood. In fact, to establish if a statement contained in a judgement will be observed in future as precedent by other judges causing them to act in the same way, one must first distinguish between obiter dictum, that which is merely a comment in passing and ratio decidendi, that which is the rationale of the decision. The former is a statement which is not strictly necessary for the purposes of the decision and hence is not normally useful for predicting future decisions on the subject. The latter, instead, is a judgement which has been adopted in a specific case by a judge because he is firmly convinced of the same and thus, will probably in future be adopted and observed by other judges.

Distinguishing between obiter dicta and rationes decidendi is not an easy task and requires recourse to the services of legal academics with considerable experience, who, when requested, can give legal opinions providing one or more solutions on a given issue. Furthermore, these solutions are delivered in a way which is understandable to the general public of non-jurists who are not equipped with the necessary instruments to understand the often technical and inscrutable language used in legal statements and judgements.

Professor Franco Angeloni is a Full Professor of Civil Law in the Faculty of Law at the University of Urbino in Italy. He provides professional legal advice, giving legal opinions with particular reference to civil law in general and specifically with regard to inheritance, property law and commercial and corporate law. To contact Professor Franco Angeloni please complete the following form.

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Prof. Avv. Franco Angeloni - Via Carducci n. 46 - 64100 Teramo - ITALIA
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