Punitive damages, cosiddetti danni punitivi, risarcimento. Un approccio comparatistico allo statuto della responsabilità civile

Court of Cassation, Joint Sessions, no. 16601/2017 has opened the doors to the recognition of punitive damages, thus sparking a debate about the role of punishment in private law. The idea lying at the heart of the judgment is that it is possible to adopt a model in which the task of repressing or deterring socially harmful conduct is no longer performed by Public Law alone, but by Private Law, as well. Central to this scenario is the prospect of awarding damages beyond the actual losses suffered by the claimant, so as to impose penalties on the defendant (so-called “danni punitivi”), following the model of punitive damages. The Author counters this idea, arguing that a faithful reading of the case law from both the UK House of Lords and the US Supreme Court proves that even the most important Common Law jurisdictions in the world now show uneasiness when it comes to punitive damages. After all, the Common Law Courts have long recognized: on one hand, the distinction between “injury” as a wrong that calls for a legal reaction, and “damage” as a loss that puts in play the need for reparation; and on the other, that a reprehensible intent is not an essential element in tortious liability. Furthermore, the Author points out that once the Italian legal system is carefully assessed, there are no reasons compelling enough to move tort law away from being a reaction to the allocation and prevention of losses. After having stressed that the “danni punitivi” should remain alien to tort law, the Author explores the possibility of employing said concept in a meaningful way, without interfering with other legal institutes or weakening the boundaries between commutative justice and distributive justice.