Il danno non patrimoniale dal torto al contratto

From the last quarter of the past century, Article 2059 of the civil code has been the subject of several rulings, which have tried to fit it to the personalistic principle expressed by the Constitution. In 2008 the Court of cassation achieved one of the major breakthroughs, finding that non-pecuniary damage is compensable not just when expressly provided for by the law, but also if tort infringes a human right. However, this solution is fraught of problems. Generally speaking, in terms of mere juridical interpretation it is a matter of finding a connection between the rule of Article 2059 and the principle of art. 2 cost. From a specific point of view, it is necessary to strike a balance between the pluralism that characterizes our era and the typicality principle. If it is not clear which interests shall be considered as human rights, the legislator choice (typicality) is likely to be practically neutralized with an indiscriminately widening of civil liability. A similar problem arises when a human right has been infringed within the framework of an obligation. Through “duties of protection” non-pecuniary damage suffered by person involved in a contract is compensable according to the breach of contract’s rules. But the instability in the debate about Article 2 cost. could lead to a general compensation of these kind of harms, going against the law of obligations. Moreover, this approach does not address the nowadays main issue of contractual non-pecuniary damage, i.e. the possibility of recovering non-economic expectation interest that performance would have satisfied. Increasingly often the claim for damage concerns this type of loss, but the Italian law system, at least in formal terms, is indifferent to this respect. While our law opened to compensation for non-pecuniary damage resulting from an aggression against human being, this is not valid also for the non-economic advantages that creditor would have obtained through the service. All these circumstances make necessary a study that systematically reconstructs the discipline of non-pecuniary damage. Once verified the actual extent of the limitations that the Italian legal system opposes to its compensability, the book tries to ascertain the existence of juridical reasons still capable of justifying them and, in case not, proposes new solution models.