Introduction

The topic Italian business law v.s. Islamic business law covers matter related economy
in a secular culture - concrete Italy society and its comparison with Islamic business
law. This research set up not only major emphasis on understanding of the contracts of
Italian business law, but it also covers questions on the history, sources, subjects of
Italian business law, legal systems and procedures, agency and employment, sales,
and other topics, and in all segments its comparison with Islamic business laws, their
similarities and eisting differences.
The research contains si sub-titles focusing on the every the above mentioned
question and also the research will contain requested forms and numbers of words.
!irst of all the historical bac"ground will be shown of Italian law and the Islamic in
regard of their laws. !urthermore the system of development of jurisdiction, contracts,
types of business entities and eplain in details differences of those topics. The
compare will include the whole period of time # of the beginning as it will be possible if
we have in mind the length $briefness% of the research topic and available time for do it.
&lso, the short epiation of used terminology of Italian business law will be presented as
well as Islamic business law in order to ma"e it clarified. In the last part of this research
the short eplanation about the main tangential segments and those ones which are
divergent, will be presented.
1. Law on Obligation
'aw (o. )*+ of ,ct. *-, *./0, implementing the 12 2onvention of 3une *., *./4 on the
&pplicable 'aw for 2ontractual ,bligations, reiterates that parties have the liberty to
choose the applicable law for their contractual obligations. The main eception to this
right is that the parties cannot avoid the mandatory provisions of Italian law by selecting
the laws of a country which has no minimum contacts with the parties or the dispute. In
such an event, the laws of the designated country which lac"s such minimum contacts
would prevail only to the etent that such laws did not conflict with the mandatory
provisions of Italian law. The above eception would not apply where the designated
state had sufficient minimum contacts.
The contracting parties are limited in their choice of law by Italian legal principles
governing the protection of public welfare. &n Italian court would not enforce a provision
of foreign law or a contractual provision, even if valid under the law chosen by the
parties, if its enforcement would violate a fundamental principle of Italian public policy.
2. Italian Law on Contracts and Types of Contracts
Today basic rules governing contractual relationships are embodied in the Italian 2ivil
2ode which was enacted in *.-5. &lthough these laws have not been substantially
modified by the legislature during the past 04 years, Italian courts have been fleible in
die interpretation of the 2ode6s provisions. 7enerally, the application of Italian 2ivil
2ode and the implementation of new legislation have reflected the changing needs of
Italian society. This discussion will focus primarily on domestic law, meaning the law
contained in the Italian 2ivil 2ode. 8owever, a lawyer drafting any contract which will be
eecuted by Italian residents or in Italy should be aware that there are various
international conventions which may be applicable. The most important conventions
are9
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The Treaty of Rome. This treaty was the founding document of the 1uropean
1conomic 2ommunity. :pecifically, Italian contracts may be subject to the antitrust
provisions contained in &rticles /0 and /), as well as pertinent regulations as they are
interpreted and applied by current case law.
The United ations Con!ention on Contracts for the International "ales of #oods.
1ffective in Italy since 3an. *, *.//, this convention governs contract formation,
obligations, ris" allocation, and remedies. It applies to contracts for the sale of goods
between parties whose places of business are in different countries.
The provisions regulating the choice of law, as well as other rules regarding private
international law issues, are set forth in the ;reliminary ;rovisions to the 2ivil 2ode
$<isposi=ioni preliminari al codice civile%. &rticle 50 of the ;reliminary ;rovisions sets
forth three criteria to determine the law governing a contractual relationship9 nationality,
place of formation, and agreement of the parties.
The first criterion is used for contracts eecuted by parties sharing the same
nationality. In this case, the law governing the contract is that of the country of shared
nationality.
The second criterion refers to the place of formation of the contract and is used when
a contract is entered into by parties of differing nationalities. >oth of these criteria may
be superseded by an agreement between the parties as to the governing law. 8owever,
there should be a logical connection between their choice of law and the transaction,
especially with parties sharing the same nationality.
The parties to a contract may, indirectly, determine the law which will govern the
formation of a contract. &rticle 5) of the ;reliminary ;rovisions states that the formation
of an instrument, whether or not contractual, is governed by the law of the place where
the instrument is formed or, alternatively, by the law that governs the substance of the
instrument. Thus, the parties may apply their choice of law with respect to the
substance of the agreement to determine the validity of the formation of the contract.
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