INTELLECTUAL PROFESSIONS. – A contract whose object is the performance of intellectual work is a species of the genus work (v.), governed by its own provisions of the Civil Code, as well as, insofar as compatible with these and with the nature of the relationship, by the general provisions on contracts for work, in addition to those of the special laws on i. p., which, among other things, determine the professions for whose practice registration in special professional registers or lists is required.
The professional has a right and duty to practise his activity. First of all, a right of freedom in the choice and practice of the profession, as at the same time an aspect of the constitutionally guaranteed freedom of work and economic freedom, and a subjective right, where the conditions are met, to registration in the professional registers. A duty, too, and not merely in the general sense provided for by the Constitution itself (art. 4, second paragraph), but in the specific sense established by professional legislation, above all for notaries (who constitute a particular category of public officials), as well as for those practising the legal professions (especially in providing free legal assistance to the poor) and the health professions, who perform services of public necessity more markedly than others (cf. art. 359 Penal Code). While, on the one hand, the duty-right of professional secrecy is recognized (Penal Code, art. 622; Code of Criminal Procedure, art. 351), on the other hand offences committed by professionals, or common offences aggravated by the practice of a profession, are prosecuted.
Independent professionals enjoy the constitutional right to trade-union freedom (art. 39); but independently of this they are protected, in the manner prescribed by law, by their own professional orders and colleges. There is no special protective legislation governing their work analogous to that governing subordinate work in enterprises. Provision for social security and assistance is made by certain bodies, but inadequately and fragmentarily, except for the National Fund for Notaries, with entitlement to a pension; V. PROFESSIONAL ORDERS AND COLLEGES.
With regard to the exceedingly delicate problem of liability in the practice of a profession, the legislator found himself “faced with two opposing requirements: that of not discouraging the professional’s initiative through fear of unjust reprisals by the client in the event of failure, and the contrary requirement of not showing indulgence toward ill-considered decisions or blameworthy inaction on the part of the professional. The Code has held that the point of equilibrium lies in the application of the ordinary rules of liability, establishing, solely in cases involving technical problems of particular difficulty, exemption of the professional from liability for slight negligence” (ministerial report to the King); in such cases, that is, damages are not payable except in the event of fraud or gross negligence. As for the other problem concerning the relations between profession and enterprise, the Code “establishes the principle that the practice of a profession does not in itself constitute the operation of an enterprise, even when the performance of the professional activity requires the use of instrumental means and the work of some assistant. But if, in addition to the merely professional activity, the professional carries on another, more complex activity, so that the former represents merely one element of the latter, the existence of an enterprise cannot be denied if the organizational requirements (indicated in the Code itself) are present. This also occurs when the more complex activity presupposes the practice of the profession, as in the case of a physician who, in addition to his professional activity, undertakes the management of a clinic organized in the form of an enterprise” (cited report). Independently of this, questions arise concerning professional goodwill, the patrimonial or non-patrimonial nature of the clientele, and its transfer to another professional.