Donation-based crowdfunding, raccolte fondi oblative e donazioni "di scopo"

Oblative fundraising is an ancient phenomenon, as demonstrated by secular collections and religious begging, practiced for centuries. Yet, it is little investigated on the legal level, despite its growing spread, even greater in the pandemic era. Traditionally organized by committees and non-profit organizations, in the digital society it can be launched by anyone, even an individual, for altruistic purposes or not, since the web allows to disseminate a project by asking the public to support it with liberal offers of money. Nowadays, this fundraising is called donation-based crowdfunding, in which the fundraiser, on its website or on a specific platform, solicits interested parties to contribute to a declared goal, setting a target of the collection as a minimum level to be reached within a set time. From a certain point of view, it is the emersion point of a new philanthropy, sensitive to the social impact of the gift: therefore, it gives new life to the human spirit of liberality and allows anyone to be a widespread and serial micro-philanthropist. At the same time, it marks a line of continuity with the oblative model consolidated by experience and typified in the civil code with regard to fundraising promoted by committees. Within this dialectic between novelty and tradition the volume tries to decipher the theme, wondering if the different legal nature of the fundraiser (committee, association, foundation, corporation or natural person), of the pursued project (altruistic or not) and of the means of communication used (internet or other mass media) affects its legal coordinates. The book aims not only to connect the theme with the system of donations, but also to provide solutions to more specific problems, first of all that of the destination constraint relating to the funds raised. To do so, great attention is paid at trying to fine-tune the line between to donate binding the donee to a purpose, through “modus” or condition, on the one hand, and to give to someone to donate to others, through “fiducia” or mandate, on the other hand. From this point of view, the research develops the thesis that, despite the tendency of the web not to make differentiations according to the subjective qualification of the fundraiser, the destination constraint is different depending on whether the fundraiser is a legal person, as such with a patrimony to which the funds raised are combined, or an individual. With regard to legal persons, moreover, despite the deemed neutrality of the legal forms of the entities, the research prefers not to give a unitary solution, but to distinguish according to the type or form under which the legal person operates. With respect to the natural person, the modal donation scheme cannot always be applied, because the “modus” cannot require the donee to devolve to third parties the whole amount of what has been received by donation. Hence, the need to admit that there are also fundraising in which, technically, there is no destination constraint and in which, therefore, the achievement of the goal depends mainly on an incentive linked to the reputation of the fundraiser on the web. The classic issues of civil law intersect, then, with those posed by the digital society, such as the standardization of contractual relationships, the remedies against the deceptiveness of online communication and the role played by crowdfunding digital platforms, specialized in intermediation between collectors of money and backers.