QUESTIONS

TRACING THE BORDERLINES

A. DISTINCTION BETWEEN TORT AND CONTRACT

The distinction between tort and contract in the Italian legal system can be explained as follows.

1) Contractual Liability

The nomen iuris defines the obligation to pay compensation for damage resulting from the non-fulfilment of a pre-existing agreement (hereinafter: obligation), leaving out of consideration whether or not the origin of the agreement is the contract. Indeed, scholars, instead of referring to contractual liability, frequently refer to the breach of a pre-existent duty.

Contractual liability is based on the general provision of art 1218 of the Italian Civil Code (It cc), founding liability of the debtor on his/her objective fault in failing to fulfil a contractual obligation, within the limits of force majeure and act of God.

Italian law includes a special set of rules to regulate some contractual types (so-called typified contracts) either under art 1470 ff It cc or under special statutes. Within the limits of the law concerning any contract, one can face specific provisions as regards contractual liability that integrate the general rule provided for by art 1218 It cc.

2) Non-Contractual/Tort Liability

Liability arising in the absence of a contractual relationship is liability in tort: it is an unlawful action, a wrong that causes damage that shall be compensated. The unlawful action is the direct source of the duty to compensate damage.

Liability in tort is supported by the general clause of liability for fault under art 2043 It cc.

Italian law provides for special rules for tort liability caused both by the wrongdoer's own actions and by the action of a third party for whom he/she is liable. These rules are governed either by the Civil Code (art 2049 ff) or by special statutes (ie the Law on Product Liability, Decreto Presidente della Repubblica: d PR no 224/1998, now arts 114 ff Consumer Code; or the Law concerning Liability for Nuclear Damage, 31 December 1962, no 1860, as modified by the d PR 10 May 1975, no 519).

To sum up: the original frame of the Italian Civil Code organises non-contractual liability as a special kind of liability, regulated at the end of the fourth book devoted to the law of obligations.