Le due specie della responsabilità civile e il problema del concorso

The non-contractual-contractual divide represents the basic criterion of qualification in private law liability. The essential difference between them is that whereas tortious obligation arises as a liability obligation i.e. as an obligation to pay damages, contractual obligation arises as a duty of performance which changes itself into an obligation of damages only in case of non-performance. What is true is that both contractual and extracontractual liability have damage in common, the objective element of every private law liability. The question is not always one of alternative between contractual and non-contractual liability. On the contrary, both can be thought of as being simoultaneously apt to rule single types of fact. A coincidence between contractual and non-contractual liability is typically the case when performance is so to say applied directly to the person or a good of the creditor, as in cases of medical practice or services in general. The counterway of a possible overlap is that in which conduct of debtor is not in itself non performance but infringes some other protected interest of creditor, giving rise to a tort. The judicial trend shows that courts talk of possible concurrence of tortious liability with the contractual one when this ends up in favour of the victim; on the other hand they opt for a purely contractual approach if this produces the only or most effective remedy for the victim. Through a analytical appraisal of the courts' attitude, the author concludes that the rule of concurrence in Italian law has only a sectorial range. This explains the idea manifested in literature, according to which concurrence between contractual and non contractual liability hardly can be justified in dogmatic terms, whereas it appears to find only reasons of «pure equity and contingent empiricism».