INTELLECTUAL PROFESSIONS. - The contract whose object is the performance of intellectual work is a species of the genus of the contract of autonomous employment (v.), governed by its own rules of the Civil Code, as well as, insofar as they are compatible with these and with the nature of the relationship, by the general provisions on the contract for work, in addition to those of the special laws on intellectual professions, which among other things determine the professions for the exercise of which registration in special rolls or lists is required.
The professional has a right-duty to the exercise of his activity. A right of freedom first of all in the choice and exercise of the profession, as an aspect at the same time of freedom of work and of economic freedom, constitutionally guaranteed, and a subjective right, where the conditions are met, to registration in the rolls. A duty also, and not only in the generic sense provided for by the Constitution itself (art. 4, para. 2), but in the specific sense of the professional laws, as above all for notaries (who constitute a particular category of public officials), as well as for those practising the legal professions (in particular for the free representation of the poor) and the health professions, who more markedly than others perform services of public necessity (cf. art. 359 Crim. Code). While on the one hand the duty-right of professional secrecy is recognized (Crim. Code, art. 622; Code of Crim. Proc., art. 351), on the other hand offences by professionals are prosecuted, or ordinary offences with the aggravating circumstance of the exercise of a profession.
Self-employed professionals enjoy the constitutional right of freedom of association (art. 39); but independently of this they are protected, in the ways established by law, by their own orders and colleges. There is no special legislation protecting their work, analogous to that for subordinate employment in enterprises. Certain bodies provide for welfare and assistance, but inadequately and fragmentarily, except for the National Fund for Notaries with entitlement to a pension; see also ORDERS AND PROFESSIONAL COLLEGES.
On the very delicate problem of liability in professional practice, the legislator found himself « faced with two opposing requirements, that of not discouraging the initiative of the professional by the fear of unjust reprisals on the part of the client in the event of failure, and the opposite one of not being indulgent toward ill-considered decisions or reprehensible inaction on the part of the professional. The Code has held that the point of equilibrium lies in the application of the normal rules of liability, establishing, only for the cases in which technical problems of particular difficulty arise, the exemption of the professional from liability for slight negligence » (ministerial report to the King); in such cases, that is, one is not liable for damages except for wilful misconduct or gross negligence. As to the other problem of the relations between profession and enterprise, the Code « lays down the principle that the exercise of a profession does not in itself constitute the exercise of an enterprise, not even when the carrying out of the professional activity requires the use of instrumental means and the work of some assistant. But if, beyond the merely professional activity, the professional carries on another more complex activity, in such a way that the former represents only one element of the latter, the existence of an enterprise cannot be denied, if the organizational requirements (indicated in the Code itself) are met. This occurs even if the more complex activity has as its precondition the exercise of the profession, as in the case of the physician who to the professional activity adds the management of a clinic organized in the form of an enterprise » (report cited). Independently of this, problems arise with regard to professional goodwill, the patrimonial or non-patrimonial character of the clientele and its transfer to another professional.
Bibliography
Ferruccio Pergolesi