Verso la razionalizzazione del risarcimento del danno non patrimoniale? Brevi osservazioni sulla revisione delle norme sul danno non patrimoniale nel codice civile

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Articolo

rivista	JUS
fascicolo	JUS - 2020 - 1
titolo	Verso la razionalizzazione del risarcimento del danno non patrimoniale? Brevi osservazioni sulla revisione delle norme sul danno non patrimoniale nel codice civile Towards a rationalization of non-pecuniary damages? Brief comments on the revision of the provisions on non-pecuniary loss in the Italian civil code
autore	Gregor Christandl
editore	Vita e Pensiero
formato	Articolo \| Pdf
online da	11-2020
doi	10.26350/004084_000060
issn	00226955 (stampa)

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Descrizione
A recent bill, presented by the Italian Government in 2019 but not yet passed by the Italian Parliament, contains a series of principles according to which the Italian civil code should be revised (d.d.l. S. 1151 Delega al Governo per la revisione del codice civile). With regard to non-pecuniary damages, the bill aims to achieve a rationalization of the cases where such damages are granted, both in case of tortious and contractual liability. Since the Italian civil code entered into force in 1942, courts have developed rich case law on the question which should now be codified by referring broadly to the criteria that the courts have followed. This article discusses the need for reform in this area and makes a proposal for a new provision on non-pecuniary loss in the area of tort law. With regard to non-pecuniary loss caused by breach of contract, it is claimed that the question of recoverability of such loss should depend primarily on the common intention of the parties to be determined also on the basis of an interpretation according to good faith, since it is on the parties to decide which immaterial interests should be covered by the scope of protection of their contract. keywords tort law, contract law, damages, non-pecuniary loss, immaterial loss, civil liability, contractual liability, breach of contract, reform of the Italian civil code.

Descrizione

A recent bill, presented by the Italian Government in 2019 but not yet passed by the Italian Parliament, contains a series of principles according to which the Italian civil code should be revised (d.d.l. S. 1151 Delega al Governo per la revisione del codice civile). With regard to non-pecuniary damages, the bill aims to achieve a rationalization of the cases where such damages are granted, both in case of tortious and contractual liability. Since the Italian civil code entered into force in 1942, courts have developed rich case law on the question which should now be codified by referring broadly to the criteria that the courts have followed. This article discusses the need for reform in this area and makes a proposal for a new provision on non-pecuniary loss in the area of tort law. With regard to non-pecuniary loss caused by breach of contract, it is claimed that the question of recoverability of such loss should depend primarily on the common intention of the parties to be determined also on the basis of an interpretation according to good faith, since it is on the parties to decide which immaterial interests should be covered by the scope of protection of their contract.

keywords

tort law, contract law, damages, non-pecuniary loss, immaterial loss, civil liability, contractual liability, breach of contract, reform of the Italian civil code.