La solidarietà nella responsabilità civile tra tendenze espansive e nuovi impieghi limitativi

This paper aims at investigating the evolution and the impact and the solidarity clause set forth by art. 2 of the Constitution on the Italian civil liability system. In particular, how it shapes the efficiency of the remedy of compensatory damages enforceable by the injured party. The first part of the analysis is dedicated to historically retracing the origin and the ratio of the solidarity clause and the concept of “unjust damage” in the Italian system, while taking into consideration the structure of the tort system and its original function, also from a historical viewpoint. I also analyze the solidarity clause in the European dimension, in order to verify how the European landscape influences the Italian meaning of “solidarity”. Furthermore, it is analyzed the new “reverse trend” of the solidarity principle. First this principle led to a broadened vision of the damages, introduced by the “San Martino” decisions regarding the non-monetary compensation for tort and contract liability. This remedy was allowed for every kind of violation of constitutional rights, even for those not provided ad hoc but included in the open listing of art. 2 of the Constitution, despite the explicit wording of art. 2059 of the civil code. In spite of that, it should be asked if, according to the latest case law development, a reverse trend could be detected. In other words, if the idea that considers the injured party compelled to bear part of the suffered damage, thanks to the solidarity clause, is progressively gaining ground. Therefore, we will analyze all the examples of this phenomenon. In that scenario, we investigate the function of the solidarity clause provided by art. 2 of the Constitution as an inner limit to the exercise of rights and, therefore, to the entirely licit activity that derives; mostly because a non-limited exercise of a right does not exist in the judicial system. The intrinsic limit is the exercise of the right in a jointly liable way, which imposes to the right holder the principle of good faith and the ban of abusing the right. These concepts are founded in the solidarity principle itself and impose to the creditor a “duty to mitigate” within the limits of a restrained sacrifice. It would be therefore a solidarity duty to sustain part of the damage (intended not only as a decrease, but also as a lack of economical increase, that should be due to the creditor on the basis of the counterpart’s performance, in order to keep the contractual bond and not terminate it). In this scenario, we will analyze the function of article 1227 of the civil code. I additionally explore the role of art. 2 of the Constitution, as a “principle of self-liability” in the field of administrative law as well. I analyze, among others, the case that arises when the injured party is compelled to partially pay for the damage deriving from an unlawful decision adopted by the Public Administration, according to art. 1227 of the civil code. This occurs solely for not having preliminarily objected to the wrongful decision, even if the injured party is not required do to so by law. Since a portion of the damage was inevitable, it has to be at the injured party’s expense. Furthermore, I will examine other similar cases in the administrative law field, in order to highlight how the solidarity clause permeates the entire civil liability system. A part of this project is dedicated to a comparative study of the solidarity clause with respect to the supranational landscape, regarding, in particular, the Draft Common Frame of Reference (DCFR) and the Unidroit principles. The comparative research proceeds in details through a comparison with the French legal system, in order to understand similarities and divergences. Before going to the final conclusion, the project investigates the real function of the civil liability system. In this part, I analyze the multi–functional nature of the civil liability in order to understand – also in a comparative fashion - if punitive damages are compatible with the civil liability functions. In this perspective I analyze the environmental damage, and show how solidarity clause allocate damages among subjects. Following the historical, current and comparative analysis, the last part of the project evaluates the impact that this clause, set forth in art. 2 of the Constitution, is having in the Italian system, as a “safety valve” directed to conform a rigid system – which is intended for the certainty of the law – to the new demand coming from the bottom. After this comparative exam, I propose an analytical overall view from an innovative perspective, bringing to the table of the Italian legal system other legal systems’ uses of the solidarity principle, in particular the French one, in order to foresee the expanding trends of the system.