La lunga marcia della responsabilità precontrattuale: dalla culpa in contrahendo alla violazione di obblighi di protezione

The essay deals with the liability for damages resulting by unfair conduct in the formation of the contract. From this perspective, the negotiation is a source, foreseen by the law, of obligations and the reliance arising from it constitutes the criterion for determining ex ante the behavior that, according to an ethical evaluation based on the social conscience, each party must observe in order to avoid the specific risks of damage that could occur precisely because of it. Therefore, the basis of liability is not the fault as a subjective requirement of the conduct, but the objective violation of an obligation of good faith, which precedes both the incorrect behavior and the damage. Ultimately, by placing itself in a pre-existing relationship between two parties, it must be assimilated to non-fulfillment and falls within the scope of art. 1218 c.c.