La responsabilità per inadempimento da Osti a Mengoni

The author analyses the relationship between the two fundamental theories about liability for non performance in the Italian civil code. Both Osti and Mengoni conceive this liability as one which, contrary to what often is said in literature, is based, not on negligence, but on no-performance itself according to what precisely art. 1218 of the Italian civil code of 1942 establishes. The specific question is the difference between the two authors. First of all Osti writes with reference to the Italian civil code of 1865, whereas Mengoni refers to the new one of 1942, which indeed adopted the solution suggested by Osti under the previous one. Secondly the idea of a contractual liability detached from negligence by Mengoni finds its foundation on the theory that every obligation has a result. Therefore the unified rule on liability is the natural outcome of a unified theory of obligation, which overcomes the false distinction between obligations de moyens and obligations de résultat. Specific attention Mengoni dedicates also to restitution at the end of a contractual relationship. Diverging from Osti, Mengoni affirms that this obligation is a contractual one, not an ex lege obligation founded on unjustified enrichment. With regard to the impossibility as a cause of exclusion of liability when it is not accountable to the debtor, the difference is that whereas Osti still holds an absolute and naturalistic idea, Mengoni accepts the suggestion of identifying it with the Unerschwingbarkeit theorized by Savigny and corresponding to a relative impossibility.