Private Law Theory

ABSTRACT
In common law countries courts introduce strict liability for hazardous activities. In civil law countries parliaments decide on exceptions from fault liability. Italy is the only European civil law country in which Art 2050 of the civil code provides an exception. This paper describes the rule, whose semantic content and meaning is disputed since its introduction. On the face of it the rule provides an enhanced level of care in case of damages from hazardous activities. It is however unclear, whether this leads to a de facto judge made introduction of strict liability for hazardous activities by Italian courts or whether Art 2050 is a fault liability rule with a level of due care higher than the normal level based on the paterfamilias or reasonable person concept. We first present the content of Art 2050 and the debate among Italian scholars on this rule, We proceed by analyzing the economic consequences if the rule is either a de facto strict liability rule or alternatively a negligence rule. If the effect of the rule is de facto strict liability it has the related intended consequences. If the rule is however a different form of negligence it causes severe unintended consequences and may make things worse compared with a normal negligence rule. We also show on the basis of all Supreme Court cases from 1986 to 2021 that the rule is actually a de facto strict liability rule. We conclude that this rule as it is interpreted by Italian courts might serve as an inspiration in the efforts to establish a tort law for the EU.

Cardillo, Salvatore and Schaefer, Hans-Bernd, A Unique Liability Rule for Hazardous Activities, Economic Consequences of the Enhanced Level of Due Care in Article 2050 of the Italian Civil Code (June 23, 2022).