Funzioni e fondamenti della responsabilità di diritto civile

This article examines the possible functions of liability in civil law, starting from a methodological premise that distinguishes between: 1) the functional interpretation of a legal rule or institution directed at its immediate and certain consequences, and 2) a functional interpretation concerned with mediate, socio-economic, and probable consequences. Within this framework, the compensatory function is first considered as the immediate and certain function of civil liability. This function is itself the product of a historical process through which civil wrongs became emancipated from criminal wrongs, a development that brought with it the establishment of objective criteria of attribution. With particular regard to these objective criteria, a preventive function is customarily added to the compensatory one; however, rather than referring to the legal effects of the liability rule, this preventive function pertains to the teleological foundation of the rule itself. On the other hand, the emancipation of civil liability from criminal liability entails the exclusion of a punitive function of civil liability, understood as a rule that would award to the injured party the gains obtained by the tortfeasor. This does not, however, preclude the recognition of sanctioning features internal to liability as a compensatory rule. From this perspective, the article advances, on the one hand, a principle of the sufficiency of negligence in place of the more common principle that posits the equivalence of negligence and intentional misconduct (dolo) and, on the other hand, exposes the ambiguity of the general principle of full compensation for harm. An examination of the rules governing the assessment of damages reveals instead a flexibility in recoverable damages that varies with the degree of culpability. Intentional misconduct, in fact, expands compensation to unforeseeable consequences, which are excluded in cases of negligence by Article 1225 of the Italian Civil Code and, more broadly, by the very logic of fault-based attribution. Furthermore, the article demonstrates, also through historical interpretation, that while the objective wrongfulness of the harm justifies or counterbalances the sufficiency of negligence, it should not preclude the recovery of purely economic losses caused by intentional acts. In this way, the distinction between negligence and intentional misconduct acquires significance, and intentional misconduct is not condemned to irrelevance despite its express mention in Article 2043 of the Italian Civil Code. Finally, the article underscores the function of civil liability in enhancing the protection of personal rights with regard to non-pecuniary damage, and takes a position against a mono-Aquilian approach, advocating instead for a plurality of civil remedies. Following this criterion, it becomes pointless to overburden liability with functions that can be better fulfilled by other, more appropriate instruments.