Il problema del “concorso” di responsabilità contrattuale ed extracontrattuale tra dottrina e giurisprudenza

Translated title of the contribution: [Autom. eng. transl.] The problem of the "competition" of contractual and extra-contractual liability between doctrine and jurisprudence

Research output: Contribution to journalArticle

Abstract

[Autom. eng. transl.] a) The prerequisites for the operation of the contractual and non-contractual liability competition The liability competition allows the injured party to act at his choice either by contract or via Aquiliana, depending on the regime which, in the specific case, he considers most favorable to the obtaining compensation for the damage suffered. A precondition for the operation of this rule is that the damaging fact violates both rights arising from the mandatory relationship and protected interests regardless of the existence of the said relationship. One of the issues on which the jurisprudence is divided concerns the faculty, for the injured party, to change the demand in the course of the case, from a claim for compensation based on contractual liability to an instance outside the contract, or vice versa. An affirmative solution to this question requires the qualification of the competition as a competition of rules, whereas the opposite solution accepts the idea that it is a competition for actions. b) The doctrine contrary to the competition of responsibility In the opinion of the majority doctrine, the rule of the responsibility competition is based on fragile dogmatic bases and is exhausted in merely empirical requirements, being all aimed at filling gaps in the protection of the damaged due to the differences , as regards the compensation effects, between the two liability regimes. This expedient, however, turns out to be a solution only apparently endowed with some efficacy; according to the doctrine in question, in the presence of a compulsory relationship, the way forward is solely the contractual one, by virtue of the specialty character of the latter with respect to the general rules of neminem laedere. c) The position of jurisprudence There is, compared to the past, a lower recourse, in practice, to the responsibility contest, recently much less invoked even in the field of medical responsibility, a sector that has long represented one of the areas of predilection of the rule. The minor usefulness of the competition seems to be confirmed, in an obiter dictum, also by the known sentence given by the Supreme Court to the United Sections in November 2008.
Translated title of the contribution[Autom. eng. transl.] The problem of the "competition" of contractual and extra-contractual liability between doctrine and jurisprudence
Original languageItalian
Pages (from-to)205-210
Number of pages6
JournalOBBLIGAZIONI E CONTRATTI
Publication statusPublished - 2010

Keywords

  • responsabilità contrattuale e aquiliana

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