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Present and future of the civil liability

Author(s): Aida Kemelmajer de Carlucci

Journal: Law Review
ISSN 2246-9435

Volume: I;
Issue: 1;
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Keywords: civil liability

Abstract While the initial preparatory steps were taken for the French Civil Code, a work which had such a great influence in the history of the western civil law, the legal expert Tarride said: “The law protects the citizens: whoever suffers a damage shall always find someone to repair it”.Nevertheless, as it is known, article 1382 of this code did not embed a solution so wide and generous for the victims; it followed the teachings of Domat, and it examined the fault; in other words, it does not order to indemnify all damages caused, but only the culpably caused damages. It is a question of a “law of closure” of a tort liability which, basically, is sustained by five articles.Soon after the sanction of this code, the fault proved itself insufficient, by itself, to cover all the scenarios which are worth be protected. Moreover, the plurality and diversity of situations implied a more detailed regulation. It is stated that “In a world where an accident is encountered at every corner, at every work place, in every house, where the individual liberties, though solemnly proclaimed, are breached daily, it is necessary to repair, to regulate and to sanctio”. The function of repair has always been essential for the invoked civil liability; the function of sanction, as seen later, continues to be seen as subject of discussions. The one related to the older regulation is connected to the process of “decoding”; in fact, until the conciliation of this phenomenon, the evolution of the civil liability, especially of the non-contractual one, has been almost exclusively the fruit of the jurisprudential work and not of the lawmaker: “The civil liability law is built from scarce legal principles; to a great extent, it is a judicial law; it is the judges who, by carrying out a permanent work of interpretative recreation, of carefully looking at a changing social reality, with its correlative alteration of mentalities, have completed the legal order with a complex of rules, derived from the necessity of solving the multiform conflicts using criteria which do not simply flow from legal provisions extremely syncopated”. Similar reflections result from the pages of one of the most respected Italian law teachers; I am referring to Francesco Galgano, who states that, just as before they said that the law reform is sufficient to make a library useless, today it is safe to say that such a uselessness may come from the change of the jurisprudence, and he draws attention to the fact that, in spite of the unaltered seventeen articles of the 1948 civil code dedicated to the non-contractual liability, the changes in the field are enormous. Therefore, it may be stated that in the field of the civil law, the theory of the liability is the one which, through the work of the judges, has produced the greatest changes. Anyway, it is necessary to point out that the permanent creation of jurisprudence is not always peacefully accepted unanimously. In Spain, Diez Picazo underlines that “The civil liability law or the tort law finds itself in a very sensible point of uncertainty due to the convergences of the doctrinal and jurisprudential tendencies which have pushed, in the last decades of its evolution, towards a very significant extension and, at the same time, the factors which advise submitting it to a certain amount of restriction; the intention to favor at maximum the viability of the indemnities has placed the legal system in a certain crisis”.

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