In dialogo con Francesco Gambino sulle obbligazioni

This essay uses Francesco Gambino’s volume Il rapporto obbligatorio (2023) as a starting point to reflect on the concept of obligation in contemporary civil law. It first highlights the methodological centrality of scientific dialogue, which lays the groundwork for legal developments capable of engaging with real-world issues and offering fresh perspectives on legal cases in light of societal changes. Within this framework, particular attention is given to the innovative notion of autonomous obligations of protection or duties to protect, which exemplify both the evolution of the sources of obligations and the transformation of the very concept of obligation. These obligations represent a legal form that, supported by the openness of the Italian Civil Code and international doctrinal developments, responds to a concrete need arising from the increasing complexity of economically advanced societies, where relationships often generate legitimate expectations worthy of legal protection. Consequently, the traditional sources of obligations – historically dominated by a form of subjectivism rooted either in the debtor’s positive will or the culpable intent of the injuring party – are now complemented by facts that, in accordance with the legal system, extend the scope of obligations in response to these socio-economic developments. From a comparative perspective, particularly between the Italian and German legal systems, the essay observes a more balanced approach to posited law in the process of Rechtsfortbildung that has shaped Italian law in this area. Finally, the emergence of autonomous obligations of protection, characterized by a simple relational structure of liability, fits within the broader bipolar framework distinguishing between liability for breach of obligations and non-contractual liability. This approach avoids reductionism to the area of tort, instead fostering a more comprehensive and balanced discipline of liability, with the necessary distinctions between its two principal forms.