Each work is expected for consideration unless it is shown that there is a purpose of solidarity instead of profit-making and the understanding that the assessment thereof made by the trial judge is censured by the seat of legitimacy if immune to errors of law and vice logical. This
the decision of the Court of Cassation, section work, January 26, 2009, No 1833.
The issue involved two people, presumably linked by a relationship of which lend a work for each other, which later brought an action for having such differences in pay due to the employment relationship. Actions that after the acceptance in the first and second degree, comes before the Court of Cassation.
The interesting question that sentence, emphasizes the idea of \u200b\u200bthe configuration of the work provided for the "veil affectionis benevolentiae cause."
As you know, in our ordering the situation typical of the employment relationship, as well as the extremes of cooperation and subordination, is also characterized dell'onerosità and therefore not the case in which a particular activity, even if objectively as gainful employment, not performed in a spirit of subordination, either in view of adequate remuneration, but for "Speed \u200b\u200baffectionis benevolentiae cause" or a tribute to the principles of moral or religious views or benefits that derive or hope to take over from 's activity itself.
These are cases in which the service is rendered by the worker without a reciprocal, because the worker is motivated by a relationship of affection towards the user of the service, familiarity, a bond charitable or philanthropic or religious or ideal.
In practice, that dell'onerosità is the rule, while the free is the exception, which is excluded due to a typical exchange between work and remuneration.
Regarding the latter issue and in particular about the work done within the family law (Cass. November 28, 2003, No. 18284) believes that the same may be assumed free of charge for the mere fact that the user is close joint (eg the husband than the wife, taking into account the limits imposed by the law by Law No 175 of 1975 family on the company) - although in principle can not completely exclude the existence of a configurable employment relationship between spouses (Cass. August 9, 1996, No. 7378, Cass. May 29, 1991, No 6083) - while, outside the family sphere, when the ratio of free to assume the presence of a political constraint, ideal, religious and similar evidence must be provided to those who successfully raises the performance "affectionis vel benevolentiae cause" and rigorous.
The law (Cass. November 7, 2003, No. 16774), also believes that the configurability of course free of charge to job performance objectively, such as outside the contract of employment in a technical sense, it was prevented by the constitutional rules (Article 36 cost. and art. 2094, 2099, 2113 and 2126 cc) which assume the burden of the relationship, as the same, doing the typical figure of employment contract, does not exclude the acceptance of a job performance with features above, the stipulation that private autonomy is allowed.
In the present case relating to the decision in question, who propeso elements were decisive for the configuration of the employment relationship was the lack of continuity in the coexistence of the two subjects, which was often interrupted, and especially the lack of a shared content common life in relation to the income of the business.
In practice, it has not proved an economic and spiritual, like that which is established between the spouses, then, even with fair access to resources.
The only evidence that it were only a few donations (no charge for an apartment, pay some debts, free removal of goods - clothes - from the shop), which however were not considered sufficient to establish a relationship of solidarity between the two people, and for these reasons, the Court rejected the appeal.
(American Lawyer, May 21, 2009. Note Gesuele Bellini )
the decision of the Court of Cassation, section work, January 26, 2009, No 1833.
The issue involved two people, presumably linked by a relationship of which lend a work for each other, which later brought an action for having such differences in pay due to the employment relationship. Actions that after the acceptance in the first and second degree, comes before the Court of Cassation.
The interesting question that sentence, emphasizes the idea of \u200b\u200bthe configuration of the work provided for the "veil affectionis benevolentiae cause."
As you know, in our ordering the situation typical of the employment relationship, as well as the extremes of cooperation and subordination, is also characterized dell'onerosità and therefore not the case in which a particular activity, even if objectively as gainful employment, not performed in a spirit of subordination, either in view of adequate remuneration, but for "Speed \u200b\u200baffectionis benevolentiae cause" or a tribute to the principles of moral or religious views or benefits that derive or hope to take over from 's activity itself.
These are cases in which the service is rendered by the worker without a reciprocal, because the worker is motivated by a relationship of affection towards the user of the service, familiarity, a bond charitable or philanthropic or religious or ideal.
In practice, that dell'onerosità is the rule, while the free is the exception, which is excluded due to a typical exchange between work and remuneration.
Regarding the latter issue and in particular about the work done within the family law (Cass. November 28, 2003, No. 18284) believes that the same may be assumed free of charge for the mere fact that the user is close joint (eg the husband than the wife, taking into account the limits imposed by the law by Law No 175 of 1975 family on the company) - although in principle can not completely exclude the existence of a configurable employment relationship between spouses (Cass. August 9, 1996, No. 7378, Cass. May 29, 1991, No 6083) - while, outside the family sphere, when the ratio of free to assume the presence of a political constraint, ideal, religious and similar evidence must be provided to those who successfully raises the performance "affectionis vel benevolentiae cause" and rigorous.
The law (Cass. November 7, 2003, No. 16774), also believes that the configurability of course free of charge to job performance objectively, such as outside the contract of employment in a technical sense, it was prevented by the constitutional rules (Article 36 cost. and art. 2094, 2099, 2113 and 2126 cc) which assume the burden of the relationship, as the same, doing the typical figure of employment contract, does not exclude the acceptance of a job performance with features above, the stipulation that private autonomy is allowed.
In the present case relating to the decision in question, who propeso elements were decisive for the configuration of the employment relationship was the lack of continuity in the coexistence of the two subjects, which was often interrupted, and especially the lack of a shared content common life in relation to the income of the business.
In practice, it has not proved an economic and spiritual, like that which is established between the spouses, then, even with fair access to resources.
The only evidence that it were only a few donations (no charge for an apartment, pay some debts, free removal of goods - clothes - from the shop), which however were not considered sufficient to establish a relationship of solidarity between the two people, and for these reasons, the Court rejected the appeal.
(American Lawyer, May 21, 2009. Note Gesuele Bellini )
Taken from the website: http://www.altalex.com/
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