PROFESSIONS (INTELLECTUAL). — The contract whose object is the performance of intellectual work is a species of the genus of the autonomous employment contract (v.), regulated by specific 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 employment contracts, in addition to those of the special laws on intellectual professions, which, among other things, determine the professions for whose practice registration in special rolls or lists is required.
The professional has a right-duty to exercise his activity. A right to freedom, first of all, in the choice and exercise of the profession, as an aspect at once of the freedom of work and of economic freedom, constitutionally guaranteed, and a subjective right, where the conditions are met, to registration in the rolls. He also has duties, not only in the generic sense provided by the Constitution itself (art. 4, para.), but in the specific sense of the professional laws, especially for those whose names constitute a particular category of public officials, as well as for those exercising legal professions (in particular for the free legal assistance of the poor) and those in the health professions, who, more than others, perform services of public necessity (cf. art. 359 of the Penal Code). While, on the one hand, the right-duty of professional secrecy is recognized (Penal Code, art. 622; Code of Criminal Procedure, art. 351), on the other hand, crimes committed by professionals, or common crimes with the aggravating circumstance of the exercise of a profession, are prosecuted.
Freelance professionals enjoy the constitutional right to freedom of association (art. 39); but independently of this, they are protected, in the manner prescribed by law, by their own orders and colleges. There is no special protective legislation for their work, analogous to that for dependent work in enterprises. Some bodies provide for social security and assistance, but inadequately and fragmentarily, except for the National Fund for notaries with pension rights; V. ORDINI E COLLEGI PROFESSIONALI.
On the very delicate problem of liability in the exercise of a profession, the legislator has been faced with two opposing needs: that of not discouraging the professional's initiative, for fear of unjust reprisals by the client in case of failure, and the opposite need not to indulge in imprudent decisions or reprehensible inertia on the part of the professional. The Code has deemed that the point of balance is found in the application of the normal rules of liability, establishing, for only those cases in which there are technical problems of particular difficulty, the exemption of the professional from liability for slight negligence (ministerial report to the King); in such cases, that is, damages are not recoverable except for willful misconduct or gross negligence. Regarding the other problem of the relationship between profession and enterprise, the Code "establishes the principle that the exercise of a profession does not in itself constitute the exercise 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 only one element of the latter, the existence of an enterprise cannot be denied, if the organizational requirements (indicated in the same Code) are met. This also occurs even if the more complex activity presupposes the exercise of the profession, as in the case of the physician who, in addition to professional activity, manages a clinic organized as an enterprise (cited report). Independently of this, problems arise regarding professional goodwill, the patrimonial nature or otherwise of the clientele, and its transfer to another professional.