Responsabilità precontrattuale

The essay deals with the liability for damages resulting by unfair conduct in the formation of the contract. The elaboration of this category was conditioned by the texts of the Digest, from which R. von Jhering obtained the rule according to which the party, who had negligently entered into an invalid contract, had to compensate the other of the damage suffered for having innocently confided in his validity. Precisely because of its origin, however, this rule could not justify compensation for damages that occurred before the conclusion of the contract or regardless of it. These limits were overcome by German and Italian doctrine through the elaboration of the pre-contractual obligation of good faith, that led to the current formulation of the art. 1337 c.c. On the basis of this rule in fact, the negotiation is a source 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, liability is not based on fault as a subjective requirement of the conduct, but it arises from 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.