LA POTESTÁ GENITORIALE EN EL DERECHO CIVIL ITALIANO.

Abstract

Save for a few exceptions, under Italian civil law a minor is absolutely incapable of taking action with regard to property, especially as concerns the conclusion of legal acts. A minor is substituted and represented in such activity by his or her parents, as the holders of parental authority and rights over the child. The grounds on which this authority rests are a munus conferred by legislation to the parents. This duty or obligation can in no way be regarded as discretional. On the contrary, it must be held to be instrumental in nature, as it is meant to strengthen and adequately implement the process of training and educating the child. The precaution that the Italian Civil Code establishes is that parental authority and rights must be exercised by both parents acting by common agreement. This does not mean that each and every act performed in the exercise of parental powers has got to be undertaken jointly by both parents. The category of acts at issue is complex, because two different people's wishes have got to be reconciled in the performance of acts of parental authority. The real point is that the general lines of action must be established by the parents together. Each parent can then go on and manage things on his or her own. If there is any disagreement about the exercise of parental authority and rights in important issues, Italian legislation states as a general rule that the disagreement is to be settled by a judge. Either of the parents can take the issue to court without the need for any special formalities, to inform the judge of the action that parent regards as best. This general rule has got a single exception: when there is a situation of risk or danger that involves serious harm to the child. Then the father is given by law the faculty to take urgent measures that brook no delay.