Unjustified Injury
The last element comprising Italian tort law is that of the unjustified injury. Defining the concept of "wrongfulness," or "ingiustizia," the notion at the fulcrum in Article 2043's general clause providing for liability, is one of the most complex areas in the entire field of tort. [1] Because of its central role in a truly general clause, the term at once "poses all the questions, and performs all the functions, of a general clause." Not only does it play the role of defining the Italian tort liability regime as one of atypicality rather than typicality [as discussed supra], but it is also, thus, "tendentially indefinable, has historically relevant connotations, constitutes a valve that tempers the rigidity of the legal scheme, allows the interpreter elasticity of appreciation, and so on." [2] The concept is sometimes expressed in Italian as 'antigiuridicità,' meaning that illegality that "allows affirming that certain conduct of a subject is "illicit" in that it contrasts with a rule and places a compensatory obligation on this subject when that conduct generates harm to others." [3]
This concept of unlawfulness traverses all legal systems, but it differs between common-law and civil-law regimes, first, because of the general dichotomy they reflect in terms of typical or atypical schemes of defining tort: common law countries are characterized by a series of types of tort, rendering them "typical" (with the arguable exception of negligence, which embraces a broad range of wrongful acts); civil law countries - with some exceptions and variations in the degree of purity (consider the German framework, discussed supra, which sets forth a typical scheme in Section 823, identifying life, body, health, liberty, property or other similar right, placing it within the typical schemes[4] ) - follow an atypical scenario with a general clause such as Italy's.
Another difference between common and civil law approaches is reflected in the way of ascertaining the wrong. To do so in the former, the court must find that a duty of care was breached by the defendant; in the latter, it must determine that a protected interest of the plaintiff was injured. [5] The investigation therefore starts at opposite positions in the two regimes to reach the target.
The point of departure in these cases [where there are no reliable criteria establishing the wrongfulness or where the relationship between the prohibition - law is not clear] is that subject A has suffered damage and tries to transfer the burden onto subject B. Given that A is able to establish the causal relationship between B's conduct (and/or that of a third party whose conduct is imputable to B) and the damage, the need remains to prove that A's was a legally protected situation (continental legal system) or that a duty of care existed and it was violated (common law system). [6]Identifying the legally protected interest is the point that renders the question in Italian law complex. Despite the apparent breadth of the ostensible "general clause," it is obvious that not every interest can be legally protected. The simplest of economic and policy considerations make clear that some sort of filter is necessary, supported by explicit or implicit "floodgate arguments" and leading to restrictive mechanisms that permeate tort law in every jurisdiction. Courts and legal scholars in countries with atypical tort schemes have narrowed the field of compensable interests by defining, classifying and eliminating certain ones as ineligible for indemnification, while the judge-made law in typical tort-law schemes has manipulated the breadth application of the duty of care to decrease the number of claims to a manageable level.
In Italy, the development - through a long history - of several doctrines and broad but precisely-defined concepts has shaped this field of law. The of these is the formal classification of protected interests, where, according to the Germanic civil-law tradition only the so-called "subjective rights" are actionable in tort. If we limit ourselves to the literal translation of "diritti soggettivi" as "subjective rights," we cannot comprehend the importance it plays in determining substantive law. Its significance "places foreign jurists and translators in difficulty, who tend to grasp only the literal meaning, thus misunderstanding the usual meaning, both used as a selective criteria of protected interests and therefore of compensable damages." [7] A restrictive interpretation, which has limited the apparently broad range of compensable injuries indicated by Article 2043's general clause, has resulted in the effective actionability only of those interests that can be classified as "absolute subjective rights." [8] Here, the German legal system's influence is apparent; it distinguishes between absolute rights (absolute Rechte) and relative rights (relative Rechte), [9] as does Italian law. Through time, changes in social values, the advancement of capitalism and technological progress have brought about changes in the courts' interpretation of which rights are protected. [10] An inextricable link has emerged between determining which interests fall within the protected category and what constitutes wrongfulness. On the one hand, this link reflects the elasticity and flexibility needed for the living law to be able to change over time; on the other hand, it results in an interdependence between the two factors, and perhaps in a somewhat circular logic: determining what is wrong determines what is protected, and vice versa.
In addition, the development of the Civil Code itself complicated the issue of determining wrongfulness. When the Civil Code of 1942 was enacted, it replaced the 1865 Code, which had reproduced the French Code Civil's Article 1382 formula for tort liability in Article 1151, which read: "Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate the damage." (Emphasis added.) It thus excluded the adjective "unjustified," which was added in the new Italian code that is still in force today. Nonetheless, despite the exclusion of the term "unjustified," both the French and Italian jurists interpreted this code provision as necessarily imposing an implicit condition of the violation of a legally protected right or of contravening a norm of law that prohibits the damaging behavior. [11]
Therefore, the 1942 Code was simply a restatement of the law as it had been interpreted and had evolved under the previous code, encompassing the concept of "unjustified injury," which has its roots in the Roman tradition of iniuria, and had indemnified only legally-protected rights, i.e., essentially only patrimonial rights. [12]
In the first decades after the new Code a controversy has ensued as to whether the "injustice" was related to the act or to the damage. One authority sums up the debate by arguing that both points of view both really state the same thing: on the one hand, the interest must be protected and on the other hand, the act must be wrongful, i.e., an action that the legal system does not otherwise defend. [13]
The presence of the general clause has spurred legal scholars to enunciate and promote various attempts at analysis and interpretation, rendering a definitive clarification of its contents still uncertain today. [14] Some use a "technical-formal" model, focusing on whether the defendant's action lacks a legal justification. Others approach it from a policy viewpoint, identified in the constitutional provision of social solidarity (Article 2, Italian Constitution[15] ) which demands the protection of interests relative to every subjective legal situation, even those not protected by specific norms. Still others connect the term "unjustified" to the injury of a "legal good," conferring upon this term the broadest possible meaning, so as to encompass any interest relative to the person, his moral attributes, family relationships and economic activity (right to credit and legitimate interests). [16] The common thread among all these theories is that wrongfulness is a "valve through which it is intended to protect a series of situations that are prejudicial to the subject and are caused by the activity of others." [17]
Thus, it is clear that the process of identifying the confines of protected interests is not contained within a "closed number." [18]
To discuss today about the typicality or atypicality of the wrong, we must carry out at least three steps: set forth a review of the protected interests, from the general clause of Article 2043; identify the techniques of protecting those interests; and examine which of these techniques best responds to the nature of our legal system and to the needs of the procedures. The first operation presupposes that the interests are multiple; that they are classifiable in a catalog, which is an open work, appropriate thus to change with the change of needs, as flexible as necessary to prevent an excessive proliferation of compensable damages but able to allow entry to new situations of protection. (...) [i]t is necessary to examine in detail the typology of interests involved, reconstructing a sort of catalog, through an examination of the cases decided by the courts. (...) In this way, the field of civil liability becomes a sort of mirror of society, with its original traditions, its delays, its returns to the past and journeys into the future. [19]In examining the development of pure economic harm in Italian jurisprudence, the page on "Protected Situations" trace in broad outlines the expansion and changes that have occurred over the last 50 years in defining which interests are protected for purposes of tort law. Given the overlap of the topics discussed therein, the following paragraphs will merely serve to summarize in advance the main consequences of these cases as they relate to the topic of defining "unjustified injury." In a first, landmark case, S.p.a. Torino calcio v. Romero (fully analyzed in "Protected Situations"), the Supreme Court overturned the long-standing theory under which only an injury to absolute rights and not one to relative rights could give rise to tort liability. It did so by relying on the absence in Article 2043 of any provision conditioning recovery on such a distinction. To arrive at its broad-reaching conclusion, the Court further found that the lack of privity of contract was not a bar to recovery, [20] and that the requisite causal nexus between the defendant's damage to the debtor and the alleged damage to the (third-party) plaintiff-creditor could not be a priori excluded but rather necessitated an evaluation of causation according to Article 1223. Last, it held that a causal nexus exists whenever a loss suffered by a creditor is definitive and not-substitutable with another performance at the same (or lower) price.
In a French case with similar facts heard by the Comar Court of Appeals, [21] a plaintiff football team whose player was killed sued the party responsible for his death, seeking a) the player's value, estimated in terms of his worth had he been sold to another team, b) the cost of substituting the deceased player, and c) loss of income. The Court held that a professional player constitutes a patrimonial value for the sporting association and that therefore his death, besides creating disorganization and frustrating the energies dedicated up to that time in training the athletes, also causes the team to lose the possibility of gaining profits. Thus the Court granted the plaintiff's first request, but refused the others, (just as the Italian court on remand in Meroni did) as not having been supported by the evidence. Because the French legal system has not adopted the German influence in the distinction between absolute and relative rights, it could rest its decision entirely upon the grounds of compensable damages. [22] Another leading Italian case Giorgio Vitali v. City of Fiesole, is also analyzed in full under "Protected Situations." To give an idea of how these interests are intertwined with the breadth of the nature of "unjustified injury," consider the following excerpts from it.
[T]he traditional interpretation of Article 2043 C.C., in the sense that only the injury of a subjective right constitutes an "unjustified injury," considering that the injustice of the "wrong," which article 2043 C.C. assumes as essential component of civil liability, must be understood in its double meaning of damage produced both non iure and contra ius: non iure, in the sense that the damaging act must not otherwise be justified by the legal system; contra ius, meaning that the fact must injure a subjective situation recognized and guaranteed by the legal system in the form of a perfect subjective right. (...)Before moving on to examine which situations are protected in Italian tort law, it is worth mentioning that the definition of the "unjustified injury" is increasingly influenced and defined at the European level, in what one author calls the "Europeanization of Civil Liability." [23] Further to the liability that was extended to the public administration pursuant the Court of Cassation's decision n. 1999/500, in a case that will be presented in full infra, Andrea Francovich and Daniela Bonifaci and others v. Italy, the European Court of Justice held the Italian state liable because of its failure to introduce Directive 80/987/ECC of 20 October 1980 concerning the protection of employees in the event of the insolvency of the employer. It was in fact the Francovich decision that "gave the essential contribution to the fall of the dogma of non-compensability for damage to legitimate expectation interests." [24] Immediately following the case, the scholars and then the courts found themselves in an incongruous position, needing to harmonize the state of Italian law which had the effect of insolating state bodies from liability with the novelty of the European decision. "It was not by chance that the Court of Justice opinion was cited by [those] (...) who prepared the turning point constituted by judgment 500/1999, the first case to admit compensability for legitimate expectation interests." [25]
[T]he main insurmountable obstacle is constituted by a substantial ground - a traditional reading of article 2043 C.C. - which identifies the "unjustified injury" with the damage of a subjective right. (...)
[It] must be noted that the citation of the "unjustified injury" clause, in the part where the protection is extended to the compensation of damages, has a particular relevance. (...) This citation permits two different interpretations:The injury of a legitimate interest, like the injury of a subjective right or of another judicially relevant interest (not one that is merely factually relevant), falls within the scope of tort liability only to the ends of qualifying the injury as unjustified. This consideration is not the same as enunciating indiscriminate tort liability for legitimate interests as a general category. Liability will be found only if the Public Administration's illegitimate act injured an interest in a patrimonial right to which a legitimate interest is effectively correlated - depending on the interest's actual content - and that it deserves the law's protection. In other words, the injury of a legitimate interest is a necessary, but not sufficient, condition to have access to a remedy in tort under article 2043 C.C. An injury must occur which is an effect of the Public administration's illegitimate and negligent activity to a patrimonial right correlated to the legitimate interest, deserving protection under the law.
- a) in the sense that the legislature has considered the "unjustified injury" as intended by the "petrified" jurisprudence, therefore only related to injury only of subjective rights;
- b) in the sense that the "unjustified injury" formula has been consciously used in its broader meaning, which comes back to life in the majority of the opinions of the doctrine that the legislature had already shown in the past as its own, albeit with weak attempts. (...)
[1]P. Franceschetti, "Ingiustizia del danno," in Vol. I, Gli interessi protetti nella responsabilità civile in the series Il diritto civile nella giurisprudenza, ed. P. Cendon (Turin: UTET, 2005), 3.
[2]Alpa et al., La responsabilità civile, 358.
[3]R. Torino, "Profili comparatistici dell'illecito," in Vol. I, Il diritto civile nella giurisprudenza, ed. P. Cendon (Milan: Wolters Kluwer Italia Giuridica, 2005), 127.
[4]Franceschetti, "Ingiustizia del danno," 7.
[5]R. Torino, "Profili comparatistici dell'illecito," 127.
[6]V. Zeno-Zencovich, "La responsabilità civile," in G. Alpa et al., Diritto privato comparato, Istituti e problemi, 3rd ed. (Rome, Bari: Editori Laterza, 2006), 289.
[7]Alpa et al., La responsabilità civile. 361.
[8]G. Alpa, U. Ruffolo & V. Zeno-Zencovich, "L'ingiustizia del danno. Tipicità e atipicità dell'illecito a responsabilità civile," in Casi e questioni di diritto private, IX - atto illecito e responsabilità civile, 1. I criteri di imputazione della responsabilità civile, ed. G. Alpa, U. Ruffolo, V. Zeno-Zencovich, (Milan: Giuffrè Editore, 2000), 54.
[9]H. D. Fisher, The German Legal System and Legal Language, 4th ed. (Oxon, England: Routledge-Cavendish, 2009), 32-33.
[10]Alpa, Ruffolo & Zeno-Zencovich, "L'ingiustizia del danno," 55.
[11]Franceschetti, "Ingiustizia del danno," 6.
[12]Ibid. 10-11.
[13]Ibid. 14.
[14]Alpa, Ruffolo & Zeno-Zencovich, "L'ingiustizia del danno," 55.
[15]Article 2, Italian Constitution: The Republic recognizes and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.
[16]Alpa, Ruffolo & Zeno-Zencovich, "L'ingiustizia del danno," 55-56.
[17]Ibid. 56.
[18]Alpa et al., La responsabilità civile, 363.
[19]Ibid. 361.
[20]Or, as clearly stated by V. Zeno-Zencovich, in "La responsabilità civile," at 299, "[T]he fact that the contract does not produce effects vis-à-vis third parties does not legitimate them to interfere in the existing contractual relationships between other parties."
[21]20 April 1955, Football Club Metz v. Wiroth, in D., 1955, 723.
[22]See Zeno-Zencovich, "La responsabilità civile," 300.
[23]G. Pascuzzi (ed), "L'europeizzazione della responsabilità civile," in Lex Aquilia 2 (Bologna: Zanichelli, 2005), 1,-24
[24]Ibid. 2.
[25]Ibid. 2.