Legal Unit 18

Injurer’s conduct:

Tort liability is based on actions that are carried out consciously and voluntarily by a person. The conduct that triggers liability can be either intentional or negligent, as long as it is voluntary and sensible.

Art. 2046 Italian Civil Code: A person is not liable if they caused damage while acting unconsciously and involuntarily, unless that condition was caused by their own negligence.

Causation:

There must be a connection between the defendant’s conduct and the

damage suffered by the victim.Two main approaches to the problem:

“But for” causation

Adequate cause theory

“But for” causation

(conditio sine qua non): it requires that the damage would not have occurred in the absence of a certain activity orevent BUT: By applying this parameter, the scope of the causal chain could be extended almost ad infinitum

Limits of “but for” causation: This test goes too far by making someone fully responsible just because their action started a chain of events.

Legal consequence: Not all necessary conditions are considered legal causes in tort law.

Case – Edelweiss and HHG ships: The HH9 operator gave incorrect information about the ship’s width. This caused the ships to get stuck, and the Edelweiss sank. The wrong information was considered a “but for” cause of the accident.

Adequate cause theory:

the conduct of the injurer is adequate cause of the damage if it is generally likely to:
- produce a result such as that which occurred
- or significantly increased the likelihood of that result occurring

Case – BGH 23.10.1951: The court rejected liability based on “adequate cause theory,” stating that the real cause was the mistake by the lock personnel, not the HH9 operator.

Function of adequate causation: This approach helps exclude distant or irrelevant factors from legal responsibility.

Example of distinction: Even if something is logically necessary, it may not be treated as a legal cause.

Damage

Tort law only compensates for certain types of harm; not everything that causes discomfort or inconvenience is legally relevant.

Example of compensable damage: A company fails to install pollution control devices, causing toxic emissions that ruin a neighboring farm’s crops.

Example of non-compensable damage: A man delays renovating his home, and neighbors complain that the building ruins the look of the street. This kind of aesthetic or emotional harm is not legally protected.

Legal notion of damage: Understanding which harms count as damage under the law helps define the actual limits of tort liability.

Scope of tort liability

Rules-based system (typical) Tort law systems that define specific causes of action in advance, usually through legislation. E.g. Common law countries and the German system.

Principle-based system: Tort law systems that apply a general principle or abstract rule to determine liability. E.g. French and Italian legal traditions.

German Civil Code – Section 823(1): A person who unlawfully harms the life, body, health, freedom, property, or other rights of another, intentionally or negligently, must compensate the victim for the damage.

French Civil Code – Articles 1240 and 1241: Any act that causes damage to another obliges the person at fault to compensate for it, whether the fault was intentional, negligent, or careless.

Ex ante limitation in rule-based systems: These systems identify in advance which interests can be protected by tort law.The protection is fixed by the written law.

Interpretation-based limitation in principle-based systems: The scope of liability is decided by interpreting a general clause through judicial decisions. The protection depends on case-law evolution.

Common ground across systems: Despite their differences, all Western tort law systems compensate for certain core interests.

Protected categories: Physical injuries, personality and privacy rights, and damage to property. (are considered absolute rights in civil law systems)

Scope of protection

Compensable damages: Art. 2043 Italian Civil Code: Italian tort law allows compensation for any unjustified harm caused by someone else’s conduct. Over the past decades, Italian courts have expanded tort liability to include economic loss arising from relative rights.

Relative rights: These are rights based on contractual or specific legal relationships, not general rights valid against everyone.

Scope of protection: Case: Associazione Calcio Torino v. Soc. A.L.I. (1953):

The entire Torino football team died in a plane crash caused by an airline’s negligence.

Claim for compensation: The football club sued for the loss of its contractual rights (credit rights) toward the players.

Court's decision: The claim was rejected because the damage affected only relative rights, not absolute subjective rights.

Legal reasoning in 1953 case: The court considered that only harm to absolute rights (like life, property, personal integrity) can be compensated under tort law.

Result: No liability was recognized for the loss of contractual rights.

Scope of protection: Case: S.p.a. Torino Calcio v. Romero (1971):

Footballer Luigi Meroni died after being hit by a car. The team sued the driver for the loss of their credit rights with the player.

Similar facts, different outcome: The Court of Cassation reversed its earlier position.

New principle: The court ruled that even relative rights can be protected by tort law.

Legal evolution: This shift shows how Italian tort law gradually moved toward broader protection, recognizing economic interests and contractual relationships as compensable under certain conditions.