Customary laws (a.k.a. customs)

Italiano

A customary law is an unwritten legal rule, which derives from general, uniform, and constant patterns of behavior, established in the long run and considered in the same way as a binding law.

The Italian legal system provides that such rules must be considered a tertiary source of law whereas legislative acts and regulations are primary and secondary sources respectively. With reference to matters regulated by laws and regulations, a custom can have legal force in two cases only: a) if a legal rule expressly refers to it (i.e. custom in compliance with the law); b) if the matter is not regulated by laws and regulations at all (i.e. custom in the absence of the law).

Among the Chamber’s market regulation tasks (as provided for in art. 2 of Law 580/1993, modified by Leg. Decree 23/2010), there is the obligation to collect, ascertain, and review customary laws related to economic/commercial activities.

The Chamber of Commerce collects and records both normative customary laws (art. 1374 of the Civil Code) and contractual customary laws (art. 1340 of the Civil Code). The so-called “Customary Laws Commission” reviews existing customs through one or more dedicated Technical Committees and, if necessary, ascertains new ones every five years. The Commission is chaired by a Justice with a qualification not lower than “Appeals Court Member”, designated by the President of the Appeals Court. The Commission consists of representatives of trade/consumer associations and professional councils, as well as legal experts. A relevant Technical Committee is appointed for the sector of the economy that is in turn taken into consideration. The Technical Committee consists of representatives of professional councils and non-partisan experts, as provided for in art. 11 of Law Decree 223/2006. A Chamber of Commerce official is appointed as Customary Laws Commission’s Secretary.

The procedure for the ascertainment/revision of a customary law is divided into various steps and ends with the publication in a special Collection. From that moment on, the new (or reviewed) customs are assumed to exist until proven otherwise and become a source of law.

The Customary Laws Commission of the Chamber of Commerce of Milan Monza Brianza Lodi took office on 15 January 2018 and will remain in office until 31 December 2022.