non-contractual liability

• The general regulation of civil liability (or non-contractual liability or tortious liability) is covered by a set of provisions (Arts 2043 - 2059 c.c.) in Title IX, Book IV of the civil code, entitled "Unlawful Acts".
• The shortness of the provisions incorporated in the Italian civil code points out a significant difference between the civil law and the common law traditions.
• In the Italian civil law, liability for wrongful acts is generally constructed in terms of the way in which the tortfeasor acts, from the perspective of the party responsible for the damages.
• In common law approaches, liability for wrongful acts mainly focuses on the nature of the victim's injury.
• A fundamental part in the development of Italian non-contractual liability has been played by other legal formants, doctrine and case law.
• In 2008, the Court of Cassation, United Sections, tried to clarify the idea of non-pecuniary damages by holding that protection is extended to cases of non-pecuniary damages produced by the infringement of the inviolable rights of the person recognized by the Constitution.
• The courts have the duty to take into account all the particular circumstances of non-pecuniary damages in each case, through the increase of the amount due for compensation in the "personalization" of the settlement of the damages.
• Compensation is not due for damages that the victim could have avoided by using ordinary diligence (Art 1227)
• The onus of probation in non-contractual liability is on the victim.
• The creditor must only prove the damages and the non-performance of the debtor in non-contractual liability.
• The term "responsabilità civile", "civil liability", is often used to emphasize that it concerns the rules of "private law" provided in the Italian civil code and "civil" statutes, as opposed to "criminal liability", which is regulated by the criminal code and criminal statutes.
• The term "responsabilità extracontrattuale", "non-contractual liability", is used to point out that this liability concerns subjects that are not parties to a contract or is not linked to contractual obligations.
• Purposes of civil liability include compensation, prevention of harm, sanction, and insurance.
• Compulsory insurance, voluntary insurance, and the use of insurance undermine the deterrent effect of civil liability, especially regarding its prevention and sanction functions.
• When an Italian jurist uses the words "tort liability", often the term "tort" is connected to the idea of "illecito" (a wrongful act that causes a wrongful damage).
• Italian non-contractual liability has adopted the "single-rule" technique of the Code Napoleon.
• The act is a human action and can be commissive (when you don't do something that you are supposed to do) or omissive.
• The idea of "wrongful damage" was introduced by the Italian legislator when drafting the civil code in 1942, and the interpretation of these two words has been, and still is, controversial.
• The interpretation of the words "wrongful damage" marks the evolution of the Italian tort system.
• The law is concerned with the defendant's mental capacity at the time in which the tort was not committed.
• The measure of damages is not linked to the degree of fault or malice, and generally speaking (with few exceptions) compensation for wrongful damage involves liability without differentiation between the two different levels of mental intent.
• If the tortfeasor is incapable of understanding or intending at the time he commits the act causing injury, he is not liable for its consequences.
• Italian law contemplates several forms of vicarious liability, the legal doctrine that assigns liability for wrongful damage to a person who did not cause the injury himself but who has a particular legal relationship with the person who materially caused the damage.
• The criterion for evaluating the behavior of the agent is due diligence under the circumstances.
• If the state of incapacity derives from a fault of the tortfeasor, then the tortfeasor remains responsible for his own actions (Art 2046 c.c.); otherwise the victim can sue the tortfeasor's supervisors (if any) who are held responsible under a vicarious liability rule (Art 2047 c.c.).
• Malice: conscience and will to cause the damage.
• Legal relationships that can lead to imputation of the damages include the relationship between tutor and the person under his care (Art 2047 c.c.), liability of parents, teachers or masters of apprentices for their children (Art 2048 c.c.), liability of employers for their employees in the exercise of the functions to which they are asssigned (Art 2049 c.c.) and liability of the owner of a vehicle for the operator of the vehicle, to rebut this presumption the driver must show that he did everything he could to avoid the accident (Art 2050 c.c.).
• Colpa, or fault, refers to negligence, imprudence and incompetence, causing the damage through inattentiveness, carelessness, solecism or breaching statutory rules or regulations.
• Other articles provide for different forms of liability, where mental intent is not required as in cases of vicarious liability and strict liability.
• Precondition of malice and negligence is the capacity to understand and intend.
• Tort liability can be excluded by the existence of some particular circumstances that justified the otherwise unlawful act.
• Dolo subsists in the conscience and the will to cause the harmful event.
• Until the early seventies, courts consistently held that "wrongful damage" was a violation of an absolute subjective right (diritto soggettivo assoluto) and the damage was wrongful only when the injury infringed a personal right (life, physical integrity, health, honor) or real rights or rights related to family relationships.
• Mental intent can be either "doloso" or "colposo", corresponding to common law concepts of intentional and unintentional torts.
• Patrimonial damages are usually broken up in damnum emergens (costs actually incurred) and lucrum cessans (lost future income).
• The right to compensation is prescribed in five years from the date on which the unlawful act occurred or the victim discovered it was caused by the tortfeasor (Art 2947 c.c.).
• In this case the minor is jointly liable with the parents.
• In cases of comparative liability of the victim, the compensation is reduced according to the seriousness of the negligence and the extent of the consequences arising from it (Art 2948 c.c.).
• Vicarious liability is often associated with strict liability.
• Patrimonial damages are equivalent to the financial loss suffered by the victim, including loss, destruction and damage of a thing with an economic value, loss of gain, and supervening necessity of making expenses.