Sources of Italian Tort Law: Historic Heritage
The study of tort law in Italy is impossible without a look at its historic underpinnings. The oldest precursors of tort law can be traced to ancient roots found in rules of the Hammurabi Code [1] from circa 2200 B.C. From Mesopotamia these principles spread throughout the Mediterranean basin, evolved and were further developed and organized into Roman law [2] – in lex aquilia[3] - which contributed to forming the basis of modern tort norms in today’s civil law countries, set within the broad field of private law. In Italy, tort liability is governed mainly by the Italian Civil Code, issued into law with Royal Decree of 16 March 1942, no. 262. [4] This code replaced that of 1865, which had been largely based on the earlier French Civil Code [5] and incorporated influences from the German Civil Code, [6] enacted at the turn of the last century. A more careful exploration of this history reveals legal concepts still inherent in Italy’s tort law today.
In classic Roman law, four categories of delicta were punishable with the payment of fines. Property was defended in those of furtum and rapina while physical and moral integrity were protected by iniuria. The fourth category, damnum iniuria datum, [7] comprised a series of wrongs which – unlike the other three – required only a finding of culpa, or negligence [8] to establish the laws’ contravention rather than dolo, or intent, required for the former. This fourth category of delict broadened considerably the field of liability and largely formed the basis of lex aquilia. In fact, no liability was to lie without a finding of either culpa or dolountil the middle of the last century, when strict liability came into vogue and found its way into the Italian Civil Code. Careful study of Roman law even reveals that it established the antecedents to today’s norms on liability without fault, in the quasi delicta forms of obligations. [9]
Natural law theories that emerged in the seventeenth century played an important role in modifying the Roman system – or the interpretation of Roman laws as had been formulated then commented and annotated upon by the glossators in the intervening epochs. Natural rights theorists such as Hugo Grotius [10] contributed to the development of the broader field of civil law by attributing it with the function of reparation. This concept created a new area distinct from Roman notions of delict, which, as seen above, bore criminal fines and placed negligent acts in the same category with theft, robbery and assault.
The other innovation brought about by the naturalists was the introduction of general principles [11] rather than number of individual instances, which tend to form “typical” cases from which liability derived under Roman law. Reparation of the injured party by the thus entered the milieu of legal thought, and together with the “exaltation of reason … paved the way for codification.” [12]
The natural law influence in the French Civil code can clearly be seen in Pothier’s “Treatise on Obligations” (1761) where he asserts that natural law lies at the basis of all the obligations: “…because if contracts, delicts and quasi-delicts produce obligations, this is because natural law already prescribed that each person fulfill everything he promised and compensate damage caused by his fault.” This concept of general civil liability emerges in article 1382 of the Code Napoléon, [13] the single provision characterized by “atypicalness” – or the absence of a delineation of “typical” cases in which tort liability arises – and the requirement of fault, understood as either intentional acts, the non-observance of an obligation, negligence or imprudence [14] under French law: “Any loss caused to a person through the behavior of another must be compensated by the person whose fault it was that the loss occurred.” As will be seen below, this article’s language and the notions it enunciates are very similar to those of Italy’s main tort provision, Article 2043 of the Italian Civil Code. However, as one author notes, when compared to the French Civil Code, the Italian provisions "add considerable precision to the general rule, completing and updating it without changing its substance."[15]
The Italian code also followed the lead of the French system wherein it provides for liability of parents, teachers, craftsmen, employers, and owners of animals and buildings. [16] In the case of parents and craftsmen, e.g., a presumption shifts the burden of proof to the defendant, whereby to avoid liability he must prove that he could not have prevented the act giving rise to the liability. [17] This shifting of the burden of proof is echoed in the Italian code with similar provisions. [18] Again, the Roman notion of liability without fault present in quasi-delicts surely facilitated implementing the important advantage the plaintiff enjoys in these modern provisions. It wasn’t until the late 1800s that notions of strict liability begin to emerge in the response to changed social conditions, that the French courts began interpreting article 1384’s provisions regarding “things in his custody” broadly, imposing liability even where physical custody no longer existed, yet the object that had caused harm was traceable and imputable to a defendant who benefited from its production.
Turning to the influence that the German Civil Code had on the historical development of tort liability, we must note that it too is rooted in the Roman law tradition. But where the French code resulted from influences of the natural rights theorists, the BGB traces its essential qualities to the Pandectistic school of 19th century Germany, who drafted it. The German civil code aspires to be a closed system, characterized by: definiteness, inasmuch as its dogmatic approach depends on unchangeable and conclusive concepts; completeness, in that it refutes the idea that there can be gaps; and exclusivity, in that the interpreter can refer to different legal norms in pre-emptive cases.[19] Not every injury of every interest is defended; thus, in contrast with the French provision of atypicalness, the German code sets forth “typical,” exclusive cases that the law protects. The overall effect of such an arrangement is to restrict the range of actionability.
The BGB operates on three levels to carry out this restrictive philosophy in its nearly 30 sections (articles) [20] setting forth the statutory framework of German tort law. First, it selects the interests to be protected: life, physical integrity, health, liberty, property, reputation, and an umbrella category including other rights established by law. [21] These “subjective rights,” i.e., rights belonging to individual subjects, form a keystone of private law, and are thus protected against damage by third parties. The protection is limited however to those explicitly enumerated rights and only against harm that constitutes a violation of a specific norm. The requirement of such a violation forms the second requisite: an unlawful act. [22]
Third, a mental element is required, which can consist of either negligence or intentional acts to create liability. [23] Where no negligence is present, a specific provision of the code must be found which renders the harmful event actionable. The relatively restrictive nature of the scope of liability created in the BGB by its rigid phrasing, as compared to the code civil, is evident if we compare the provisions for employers’ vicarious liability, where the German code provides a defense for employers who can show they exercised reasonable care when selecting their agents or employees. [24] No such exculpatory provision is present in the French code.
Despite these legislative differences, the result is less somewhat pronounced because of the jurisprudence interpreting the codes, creating new protected interests in Germany. One example is the “right in an existing commercial or industrial enterprise,” which was developed to protect against problems such as competition and boycott, and has been identified as “another right” within the meaning of Section 823 BGB. However, the restrictive tendencies characterizing German tort legislation can still be seen in the courts’ interpretation and application of the law in cases where plaintiffs claim injury to this right. Consider the following from German Supreme Court, denying protection under the asserted right to a plaintiff factory that lost electrical power and thus nearly a full day of its production when defendant’s employee cut the underground power cable that supplied the factory:
"[A]cts which damaged the commercial or industrial enterprise indirectly only were not regarded as illegal acts in the meaning of 823 I BGB. Examples are: if the person carrying on a commercial or industrial enterprise is only deprived of economic profit [references], or if the relationship with suppliers is affected detrimentally [reference] or that with the range of customers [reference], or, finally, if only the prospect of gain is diminished or endangered [references]." [25]Despite narrow interpretations by the courts in some instances, however, the catalogue of “other rights” in German tort law has significantly grown to cover previously neglected situations. Especially in the latter half of the 1900s, new interests have been increasingly protected, such as injury to reputation and infringement of privacy, also thanks to acknowledgement of constitutional values, in Germany and in other legal systems including Italy’s, as we shall see, infra.
[1] In law number 55, e.g., factors inherent to the theory of negligence appear – along with what a common law jurist would identify as trespass: “Should any one open his ditches to water his crop, but is careless, and the water should flood the field of his neighbor, then he shall pay his neighbor corn for his loss.”
[2] To be precise, it is opportune to note that references made herein regarding Roman law are actually only the best estimates of what it in fact was – made by legal historians through the course of the transpiring centuries.
[3]The first Roman law that provided for extensive application of the lex Aquilia, or indemnification in civil cases for damage from others' fault, was enacted circa 286 B.C. See G. Alpa et al., La responsabilità civile. Parte generale, ed. G. Alpa (Turin: UTET Giruidica, 2010), 34.
[4] Code provisions are interpreted by the courts when determining the outcome of controversies. In addition, Italy is subject to European Union law, and in specific areas such as product liability or environmental law, in which EU legislation exists, it is highly relevant but largely approximates that of member states, including Italy. Recently the European legislator has also passed a law applicable to non-contractual obligations in Regulation (EC) no. 864/2007 of the European Parliament and of the Council of July 11, 2007, regarding choice of law. Official Journal L 199, 31/07/2007 p. 0040-0049, also known as Rome II. “… [T]he purpose of this Regulation… is to lay down a uniform set of rules of law applicable to non-contractual obligations, irrespective of the country of the court in which an action is brought. This should increase certainty as to the applicable law and improve the predictability of legal disputes and the free movement of judgments. As a general rule … the law applicable to a tort/delict is the law of the country where damage occurred. Only in certain limited, duly justified circumstances, the general rule will be derogated from and special rules applied. The Regulation contains special rules on product liability, unfair competition, environmental damage, infringements of intellectual property and industrial action. The initiative more particularly concerns questions related to civil liability for damage caused to others, particularly in the event of an accident. It applies, for example, to road accidents, defective products and environmental pollution. [5]Code Napoléon, 1804. [6]Bürgerliches Gesetzbuch, 1900 (BGB) [7]Damage unlawfully inflicted. [8]Some disagreement exists as to whether in effect the notion of culpa in Roman law meant only a causal connection between the wrongful act and the damage by this term. [9] Obligationes quae quasi ex delicto nascuntur. Among these are the actio de effusis et delectis, available to plaintiffs against the inhabitant of a home injured by liquid or solid objects thrown from it; the actio de positis et suspensis, which also imposed liability against a home’s inhabitants for those injured by fallen objects leaning against or hanging from the home; and the actio in factum contra nautas, caupones, stabularios, available to passengers or clients victimized by theft by the servants or employees of boatmen, hotel owners and stablemen, who were thus held liable. Descendents of these forms of liability are seen in today’s Italian Civil Code in article 2051, Damage caused by things in custody and article 2049, Liability of masters and employers. This information on Roman law’s formative importance in tort law, as well as the French and German civil codes’ influence in its historical development as will be described infra, has been liberally taken from La responsabilità civile, Vincenzo Zeno-Zencovich, in Diritto private comparator, Istituti e problemi, 3rd edition, 2006, Editori Laterza, pp. 272 – 313, at 273 -275. [10] In “The Rights of War and Peace,” (2005 ed.) vol. 3 (Book III) [1625] p. 539, Grotius wrote, “This is not an arbitrary or voluntary Establishment, founded upon any pretended Right of Nations, of which the Existence cannot be proved, and where all is reduced to a Custom more or less extended, but which, in itself, has never the Force of a Law. The Right in Question is a necessary Consequence of the Constitution of Civil Societies, and an Application of the Maxims of the Law of Nature to that Constitution…. No human Establishment, no Tie into which Men enter, can dispense with the Obligation of that general and inviolable Law of Nature, That Damage or Wrong ought to be made good; unless those, who are thereby exposed to suffer Wrong or Damage, have manifestly renounced their Right to demand that Reparation.” [Emphasis added.] [11] Consider the following, from natural law theorist Jean-Jacques Burlamaqui: “Such are the ideas we ought to have of right, considered as a faculty. But there is likewise another particular signification of this word, by which it is taken for law; as when we say, that natural right is the foundation of morality and politics; that it forbids us to break our word; that it commands the reparation of damage… In all these cases, right is taken for law. And as this kind of right agrees in a particular manner with man, it is therefore a matter of importance to clear and explain it well…” The Principles of Natural Law, J.J. Burlamaqui, 1748, Translated by Nugent, 5th ed., University Press, 1807, Chapter VII, section VIII. [12] I grandi sistemi giuridic contemporanei, René David, Camille Jauffret-Spinsi, 5th Edition edited by Rodolfo Sacco, (2004) Cedam, p. 39. The authors point out the “axiomatic, eminently logical arrangement of the law” carried out by the natural rights theorists, aiming to imitate the sciences. “Distancing itself from the idea of a natural order of things desired by God, [the School of natural law] instead expects to construct social order in its totality by examining man; it exalts individual natural rights arising from the very personality of each person. By now, the idea of the subjective right tends to dominate legal thought ... Refusing the classic conception of order deriving from divine will and from the very nature of things, and referring all rules to man, considered as the only existing reality, the School of natural rights – thus improperly named – no longer sees law given as natural, but the work of reason. Man’s reason is by now called upon to become the only guide...” Ibid p. 37- 13] “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.” [14] Art. 1383 French Civil Code: Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence [15]W. van Gerven, J. Lever & P. Larouch, Tort Law, Common Law of Europe Casebooks, (Oxford-Portland: Hart Publishing, 2000), 129. The authors assert that "[t]he same holds true for Articles 2047-54 on liability for others and for things, Article 2055 on joint and several liability and Articles 20456-8 on the assessment and reparation of damages. Article 2058 of the [Italian] Codice civile expresses a preference for reparation in kind if and to the extent possible."
[16] Art. 1384 French Civil Code: A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things in his custody. [17]Art. 1385 French Civil Code provides “The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under his custody, or whether it had strayed or escaped.” And Article 1386 French Civil Code: “The owner of a building is liable for the damage caused by its collapse, where it happens as a result of lack of maintenance or of a defect in its construction.” [18] Italian Civil Code, Article 2047. Injury caused by person lacking capacity: If an injury is caused by a person incapable of understanding or intending, compensation is due from those who were charged with the custody of such person, unless they prove that the act could not have been prevented. (…) [19] La Tradizione giuridica occidentale, volume 1, Testo e materiali per un confronto civil law common law, Vincenzo Varano, Vittoria Barsotti, G. Gioppichelli Editore, Turin, 3rd edition, p. 147 [20] BGB articles 823-851. [21] Section 823, BGB Liability in damages: A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this. [22] Common law jurists might translate this element to “a breach of a legal duty.” It is interesting to note that in common law, the starting point for determining tort liability is whether a legal duty of care exists and has been breached. Instead, in civil law countries, despite the presence of an element requiring unlawfulness of the act, the primary inquiry focuses on whether the injury affects a legally protected situation. This is true both in “typical” and “atypical” regimes. [23] Section 826 BGB: Intentional damage contrary to public policy: A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.” It is interesting to note that the language here, imposing liability for intentionally inflicted actions through a wrongful act which is also contrary to public policy, creates a general – atypical – structure, removing this class of intentional torts from the default, “typical” categories proscribed by Section 823. [24] Section 831 BGB: Liability for vicarious agents: (1) A person who uses another person to perform a task is liable to make compensation for the damage that the other unlawfully inflicts on a third party when carrying out the task. Liability in damages does not apply if the principal exercises reasonable care when selecting the person deployed and, to the extent that he is to procure devices or equipment or to manage the business activity, in the procurement or management, or if the damage would have occurred even if this care had been exercised. See Article 1384 Code civil, supra. [25] Emphasis added. BGHZ 29, 65, as cited and translated in “German Law of Torts, A Comparative Treatise, B.S. Markesinis & Hannes Unberath, 1994, 3rd Ed., Hart Publishing, pp. 204, 205. Insight to the policy reasons behind this narrow holding is revealed further on in the same case: “The appellate court also appropriately rejects any liability to compensate for an interference with the plaintiff’s business … [and this court] holds fast in principle to its decision in spite of some loudly expressed academic criticism. The need to relate to a trade, as established by the 1959 judgment (…) is essential if the protection provided by case-law in the event of a violation of the right of an established and active business is not to be enlarged into a general delictual rule for the protection of traders.” Ibid, p. 211.
Article 2048. Liability of parents, guardians, teachers, and masters of apprentices: The father and mother, or the guardian, are liable for the damage occasioned by the unlawful act of their minor emancipated children, or of persons subject to their guardianship who reside with them. The same applies to a parent by affiliation.
Teachers and others who teach an art, trade, or profession are liable for the damage occasioned by the unlawful act of their pupils or apprentices while they are under their supervision.
The persons mentioned in the preceding paragraphs are only relieved of liability if they prove that they were unable to prevent the act.
Article 2049. Liability or masters or employers: Masters and employers are liable for the damage caused by an unlawful act of their servants and employees in the exercise of the functions to which they are assigned.