This unpleasant situation, at least sometimes, has been experienced by all citizens, the reason behind the "selection" that takes place at night clubs, covers, according to some, good name, reputation and prestige of the local itself.
On the other hand, the fact of granting the possibility of entry by the operators, in a nightclub, only to those who have decent clothing, allows many advantages, such as improving the quality of customers, or prevent problems peaceful coexistence within the room and finally increase the appreciation social, ie the income of that business.
In most cases, who, finding himself denied the chance to enter the room, gives up, without any challenge put in place, partly because the situation is now common and, as noted by some writers, the customs, you are, terminate or modify, much faster than the law and consequently associates comply more strictly with the use (1) .
In this instance, the dancing, to urge consumers to participate in their events, print the invitations, by which you can identify the local, location and cost of the same entry, of course, to this point, it is easy to say that the present case concerns a contract, covered in Book IV of the Civil Code, specifically, to ' 1336 article, entitled "public offer" .
the United States, the doctrine has been employed to distinguish between offer and invitation to offer, in our country, the issue has been thoroughly studied by F. Galgano (2) .
In terms of written sources, should be drawn Vienna Convention on the International Sale of Goods , for a similar interpretation in our case, a proposal sent to specific persons is an offer indicate the contract if the goods and contains procedures for determining the quantity of the goods and the price obviously must also give the will of the declarant bind of wanting ( art. 14, 1 ).
In terms of logic, it is necessary that the declaration should contain the essential elements of the contract However, this is not enough to identify the offer, there must be the will of the offeror to be bound.
Party doctrine says that from the moment a proposal is made public and contains an offer is worth the price (3) , as the ' art. 1336 cc , says "offered to the public, when it contains the essential details of the contract at the conclusion of which is directed" , however, other authors reach the opposite view (4) since, always art. 1336 cc, down "unless stated otherwise by the circumstances or customs."
In our case, the invitations printed, that the same premises, they emit large scale, with the aim of encouraging their associates to travel to the same business, listing: location, price, opening and closing, et cetera ... and represent, in my view, the will of the operator commercial activity to be bound.
At this point, without considering the merits of the various lines of doctrine, comes to the rescue ' art. RD No. 187 May 1940 635 (Approval of regulations for the implementation of the Consolidated June 18, 1931, No. 773 of the laws on public safety) which states:
"Except as have Articles. 689 and 691 of the Penal Code, operators can not without a legitimate reason to refuse the performance of your exercise to anyone who asks for it and pay the price "
The legislature, of course not to leave too much freedom of contract to the parties that prejudicing the consumers, intervened, however, someone might wonder if the ' art. 187, TULPS may or may not relate to the dancing, the question has provided a comprehensive response to the Constitutional Court in a sentence.
the Court by the Government, was asked to comment on the content of a law of the Region of Tuscany, with which it was intended to punish the obligation of those who deny the provision for discriminatory reasons. In this regard, the Court, with the ruling No 253, July 4, 2006 said, inter alia, that:
"This rule (that of Tuscany) prohibits per gli operatori commerciali appartenenti a determinate categorie di rifiutare la loro prestazione, o di erogarla a condizioni deteriori rispetto a quelle ordinarie, «senza un legittimo motivo e, in particolare, fra l’altro per motivi riconducibili all’orientamento sessuale o all’identitàdi genere».
Dalla sentenza si desume che, è fatto divieto agli “esercenti”, intenso in senso ampio ( sia gestori di bar, ristoranti,commercianti, et cetera… ), di rifiutarsi di fornire la prestazione, senza un motivo legittimo, a causa di motivi discriminatori , o che attengono, all’ orientamento sessuale , in caso di non ottemperanza i trasgressori shall be punished with administrative fine of a minimum of Euro 516.00 to a maximum of Euro 3,098.00 (5).
Another provision, enacted by the legislature, consumer protection, is related to 'art 43 Leg. July 25, 1998, No 286 "Consolidated text of provisions governing immigration and the status of foreigners" which states:
"For the purposes of this Chapter, any behavior that constitutes discrimination, directly or indirectly involving a distinction, exclusion, restriction or preference based on race, color, descent or national or ethnic origin, religious beliefs and practices, and has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal terms ', human rights and freedoms' fundamental in the political economic, social, cultural and any other field of public life "
the second paragraph of that article provides:
" In any case performs an act of discrimination Whoever imposes conditions more 'unfavorable or refuses to provide goods or services being offered to a stranger only because of his status as a foreign or belonging to a particular race, religion, ethnicity or nationality '"
And the third subparagraph of the provision in question also extends protection to Italian citizens:
"This Article and Article 44 shall also apply to the xenophobic, racist or discriminatory perpetrated against Italian citizens, stateless persons and nationals of other EU Member States present in Italy. "
It is not easy, at this point to say that in this case, namely the selection, put in place at the door of clubs from the security personnel involved in the club, is unlawful because it violates the first principle of equality established by ' art. 3 of the Constitution, since, you make a systematic discrimination among those who have a decent clothing (according to them of course), compared to others who can not afford the same clothes.
Secondly, the rules laid down by ' art. 43 Leg. July 25, 1998, No 286, el ' art. RD No. 187 May 1940 635, do ban on such discrimination, and if not, in the first case the order of the court will put an end to this situation, while in the latter case, the offenders will be punished with administrative penalty.
Thirdly, in my view, prohibit access to the disco, in a totally arbitrary, not to a person who has engaged in any harassment, or can not be held dangerous, is to configure a fault and tort in this case, a non-pecuniary damage, since the ruling by the United Sections 24 June to 11 November 2008, n. 26972 argued that the non-pecuniary damage under Article. 2059 cc receives compensation claims, outside the cases provided by law, when there is a infringement of a person's inviolable right , the damages will be granted if it exceeded the level of tolerance, it is found that the gravity of ' offense and the seriousness of the injury, resulting from injury of constitutionally guaranteed rights.
In this case, prohibiting entry to a nightclub in a subject, not only for fitness clothing (which very often goes to mask the intent to allow local access to only certain people), is an attitude that goes to frustrate the dignity of a person, especially those "inalienable human rights" that the Republic recognizes and guarantees all ' art. 2 Of course it will be the interpreter of the Constitution
/ applicator (6) , identify where you can recognize a tort, however, consider, as noted by some authors, that the law hominum case was originated developed and consolidated, that is strettamente collegato alla vicenda umana (7) .
Pertanto, come ha osservato taluno, si dovrà immergere il caso concreto nella “storia vivente”(8) , di conseguenza, a mio avviso, non è possibile, in un moderno sistema giuridico, consentire di vietare l’accesso nei locali pubblici, per il solo motivo, di non presentare un abbigliamento idoneo ( sempre a loro modo di vedere ), un moderno Stato, pluralista e democratico dovrebbe porre fine a tali situazioni e considerare meritevole di tutela, la pretesa risarcitoria di chi, come spesso avviene a molti, viene discriminato in maniera del tutto arbitraria all’ingresso dei locali pubblici.
Per concludere, vorrei citare the distinction between jus and lex that masterfully analyzed Gustavo Zagrebelsky, taking the configuration of rights written by Thomas Hobbes:
"Lex had said the authoritarian control to which all subjects are tested, namely the right ex parte principis; jus was instead of what freedom was recognized by the law to individuals, the right civium ex parte. "
"With contemporary constitutions, the Hobbesian distinction of lex and jus ceases to be merely a conceptual clarification or exhaust moral ... It becomes operational principle of law ... In the presence of catalogs of rights set forth in rigid constitutions. .. We can theorize a double-sided legal experience: that of the law, which expresses the interests and intent, the programs of political groups and the majority of the inviolable rights, which are attributed directly by the Constitution as its legal dotazuibe of their owners, independent of the law " (9).
Notes:
(1) R. Sacco, Legal Anthropology , Bologna, Il Mulino, 2007, as well: P. Grossi, First Lesson of law , Laterza, Bari, 2009; or N. Rouland, Legal Anthropology , Giuffrè, Milano, 1992
(2) F. Galgano, Bonds, cit., 35.
(3) R. Sacco, G. De Nova, The contract, Tome second , UTET, Torino, 2004
(4) F. Galgano,
Bonds (5) M. Bombi, The requirement to sell goods on display , cit., Http://www.marilisabombi.it/doc/articoli/061208_obbligo% 20of% 20vendita.pdf
(6) P. Grossi, First lesson of law, Laterza, Bari, 2010
(7) P. Grossi, First lesson right , Laterza, Bari, 2010, cit. Hermogenes steps available in the Corpus Juris Civilis, pg. 11 ff.
(8) P. Grossi, First lesson right , Laterza, Bari, 2010
(9) G. Zagrebelsky , mild law, Einaudi, 1992, Torino, cit., Pg 62-63
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