Law of Obligations - Tort

• Tort Law


  Concerned with some kind of wrongful conduct which causes harm. The legal system aims to protect you against this harm by granting you a right to obtain compensation.
• Key concepts of tort law

  • Wrongful Conduct
  • Causing Harm
  • A Right to Obtain Compensation
• In our system, there is the principle of neminem laedere - not to harm anyone. This idea is the source of obligations.
• Moral damage


  Harm to a person's psychological state, even depression. Not compensated in our legal system.
• Our legal system doesn't compensate you for any harm you suffer but only for any wrongfully caused harm you suffer.
• Unjust harm


  The focus in Italian law is on the kind of harm caused to you and whether it can be compensated.
• Obligations


  Emerge out of a relationship between one private person and another private person, either from a deliberate act of an individual or from the operation of the law itself.
• Possible bases of the action for damages in tort

  • Appeasement
  • Justice
  • Deterrence
  • Compensation
• Redress must entail the payment of compensation to restore the victim as nearly as possible to the position they would have been in if the injustice had not occurred.
• Fields of legal liability

  • Criminal
  • Tortious
  • Contractual
  • Restitutionary
• Difference between tort and crime

  Crime is an offence against the State, which will punish the offender. Tort liability exists primarily to compensate the victim by compelling the wrong doer to pay for the damage done.
• Difference between tort and contract

  Contract law assures the promise the benefit of the bargain, tort law has the different function of primarily compensating injuries or losses. Tort duties are primarily fixed by law, in contrast to contractual obligations which can arise only from voluntary agreement.
• Difference between tort and restitution


  Restitution serves the idea that justice requires the restitution of unintended benefits so as to prevent unjustified enrichment.
• Wrongfulness


  The wrongful conduct is the harm of such a kind that in our legal system is acknowledged as a harm deserving compensation by the law of tort.
• Damage


  The kind of harm caused.
• Damages


  The compensation for the damage suffered.
• Differences between liability in tort and criminal liability

  • The Parties
  • Actions are Separate and Distinct
  • The Aims are Different
  • Heard before Different Courts
  • Different Standard of Proof
  • Different Vocabulary
  • Prescriptive Period
• In tort, the victim must prove everything. Our legal system doesn't favour the tort victim and doesn't make it easy for them.
• Aim of tort law


  To remedy a wrong which has been committed.
• Aim of contract law

  To give effect to agreements which normally have a purpose to bring about an economic transaction.
• Our Code has inherited the French approach where contract occupies pride of place in the law of obligations and everything else is subsidiary.
• Difference between tort and contract obligations

  In tort, you have an obligation to be diligent and the victim must prove the failure of diligence on the part of the tortfeasor. In contract, the presence of an agreement is crucial and the onus of proof is different.
• Tort

  Obligation not based on a pre-existing agreement between the parties
• Contract


  Obligation based on a pre-existing agreement between the parties
• Differences between Tort and Contract

  • No pre-existing obligation between parties in tort
  • Presence of an agreement is crucial in contract
  • In tort, one becomes a debtor against their will, in contract one becomes a debtor because they have willed it
  • No need for pre-existing agreement in tort, but there is in contract
  • Onus of proof is different - in contract plaintiff proves what is due, in tort plaintiff must prove defendant's actions caused damage and this is imputable to defendant's fault
• For certain contractual obligations, there is an obligation to be diligent and not an obligation to bring about a particular result
• Obbligazione di mezzi


  Obligation to act prudently and diligently in fulfilling a particular contractual duty
• Obbligazione di risultato


  Obligation which the fulfilment of which depends on achieving a particular result
• Even if an obligation is classified as contractual, the plaintiff must prove the defendant was negligent and at fault
• The relationship between a doctor and patient is regulated by contract
• Obbligazione di mezzi (for doctors)


  Obligation to use the best of their abilities to achieve the best result for the patient, not to promise a successful outcome
• For a doctor to be found negligent, the following must be proven: 1) The doctor was guilty of a failure that no medical practitioner of equal skill would be guilty of with ordinary care, 2) The doctor deviated from a general and approved practice, and this course was one that no medical practitioner of like skill would have followed with ordinary care
• Negligence in medical liability arises from the pre-existing contract, not just tort law
• Even when exercising a right to negotiate, if done in bad faith beyond legal limits, it can constitute tort liability
• The relationship between a doctor and patient is regulated by contract, with the doctor having an obligation of means (obbligazione di mezzi) not an obligation of result
• The onus of proof is on the defendant to show they acted with the required level of diligence, once the plaintiff has made their case
• Damages for breach of contract reflect the positive interest - what the claimant hoped to achieve through the contract
• Damages in tort reflect the negative interest - restoring the claimant to the position they were in before the tort
• In contract, the debtor is only liable for foreseeable damages, unlike in tort where there is no foreseeability requirement
• The distinction between contract and tort is important for prescription (statute of limitations) periods