ABSTRACT
This paper examines whether Italian tort law can properly be described through the liability rule model developed by Calabresi and Melamed. It argues that the conventional law-and-economics view of tort liability as a system that permits harmful conduct subject to the payment of damages does not accurately describe the structure of Italian law. The paper develops a three-part operational test based on the availability of injunctive relief, the possibility of lawful resistance to the interference, and the availability of restitution in kind. Applying this test, it shows that Italian tort law is predominantly structured according to property rules: damages do not operate as a price authorizing interference, but as one remedy among others for conduct that the legal system seeks to prevent or terminate. Liability rules are instead found primarily in the limited category of lawful harmful acts, in which interference with an entitlement is legally permitted without the holder’s consent in exchange for compensation. The paper examines several such cases under Italian law and assesses whether their compensation mechanisms satisfy the efficiency conditions associated with the Calabresi-Melamed framework. Finally, it argues that the limited role of liability rules is not peculiar to Italian law and offers a behavioral explanation for the broader legal preference for property-rule protection, drawing on loss aversion and Prospect Theory.
Baffi, Enrico, To Provide for Damages Is Not to Authorize: Property Rules, Liability Rules, and Tort Law in Italy (September 1, 2026).
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