Private and Public law
Statutory periods.
Tortious liability.
The impact of time over
legal relationships:
the statutory limitations
Statutory limitations
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If a subject fails to exercise or use a right,
for a certain period of time…
…such (factual) situation may trigger the
loss of the right and, possibly, another
person may acquire such right.
Statutory limitations
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Statutory limitations
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Examples:
The right to obtain restoration of damages arising from
breach of contract may not be exercised after 10 years
of the relevant triggering event
Rights arising from mandate agreements: the limitation
period is equal to 1 year
- Rights arising from insurance agreements: the
limitation period may be equal to 1 or 2 years
Statutory limitations
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Other examples:
- Ad rem rights over a third party’s
property: limitation period is equal
to 20 years
- Corporate rights: 5 years
- Rights arising from periodical
performance of obligations: 1 year
Statutory limitations
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What is the rationale?
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Need for certainty in legal relationships
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Need for steadiness
- People tend to identify a factual situation
with underlying rights (if a right is not
exercised, apparently it is not in place or it was
forfeited)
Statutory limitations
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The norms regulating statutory limitations are mandatory
provisions of law:
are the parties allowed to deviate from them?
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They may not be waived by the parties :
in advance?
as long as the limitation period is running?
after the elapse of the limitatio period?
They limitation periods not be shortened nor extended
Statutory limitations
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Rights arising from limitation periods…
• …may not be activated by the
Court, on its own initiative
• …may be exercised by creditors of
the party affected by limitation
periods, even in case that the
debtor waived his/her rights linked
to statutory periods
Statutory limitations
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Statutory periods do not apply to:
• Indisposable rights (right to name,
constitutionally protected rights, personal
status, rights pertaining to parents’ status
to children, etc.)
• Ownership rights (except for usucapione)
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Right to claim that an agreement is null and void
Faculties attached to a right (e.g., right of
the owner of a piece of land to close that)
Statutory limitations
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Limitation periods start running
from the day when the relevant
rights could have been exercised
Statutory limitations
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If a right was subject to a condition
precedent, limitation periods start
running from the day when the
condition was fulfilled
Tortious liability
Tortious liability
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Liability “in tort”
(responsabilità extra-contrattuale)
A damage is created but it is not
related to a breach of an
agreement.
Tortious liability
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Main topics
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The provision of art. 2043 of the Italian Civil
Code
Fraud or negligence
Ability to understand and take action
Link of causation
Exemptions from liability
Liability arising from other subjects’ behaviour
Damages ad damage restoration
Right to have the original situation restored
Statutory limitations
Tortious liability
Art. 2043 of the Civil Code
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Art. 2043: anyone causing a
damage to another person is liable
for damages, to the extent that
such damages took place outside
the scope of the applicable laws
(“danno ingiusto”)
Tortious liability
Art. 2043 of the Civil Code
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In order for a tortious liability to arise,
evidence must be provided of:
1. A damage
2. Negligence (of fraud)
3. Link of causation between the
liable person’s behaviour and the
damage
Tortious liability
Art. 2043 of the Civil Code
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• Damages arising from a breach of
criminal law: typical situations (they
are expressly contemplated by
specific provisions of law)
• Damages arising from a breach of
non-criminal law: atypical situations
(a person may be held liable even in
the absence of a specific rule of law
Tortious liability
Fraud and negligence
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• Negligence: a person fails to adopt
appropriate precautionary measures to
avoid possible damages to third parties,
or acts in breach of the applicable
diligence practices. The person,
however, does not specifically intend to
act in breach of the law
(“negligenza, imprudenza o imperizia;
inosservanza di leggi, regolamenti, ordini o
discipline”)
Tortious liability
Fraud and negligence
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• Fraud: a person aims at achieving
a goal which is prohibited by law;
the person intention is to breach
the law.
Tortious liability
Fraud and negligence
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Tortious liability may only arise if a person
acted (at least)
with negligence.
However, in specific situations, in order for
tortious liability to arise, fraud is required
(e.g., Art. 833 Civil Code: acts disturbing
another person’s property)
Tortious liability
Ability to understand and take action
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Tortious liability may only arise if the liable
person was able to understand and take action
(a similar principle applies to criminal law)
• Unable persons may not be held liabe, unless
inability was procured by the person himself
• If the person was unable, liability may be
incurred by the person charged with supervision
• If none was charged with supervision, an
“indemnity” may be requested to the unable
person
Tortious liability
Link of causation
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Link of causation: the event could not have
happened, without the action/contribution of
the liable person
• Damage restoration may be only requested if
damages are direct and immediate
consequence of the liable person’s behavior
• Evidence of the link of causation must be
provided at Court
• The damaged person might have also
contributed to the damage event
• Several persons might have collaborated in
triggering the damage event
Tortious liability
Exemptions from liability
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No tortious liability may arise if:
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The damage event occurred while
exercising a right, or while fulfilling an
obligation or duty
Self-defense (need to protect oneself or
one’s own property from the actual danger
of an unlawful offense)
State of necessity (e.g., shipwrecked
person)
Tortious liability
Liability linked to another person’s behaviour
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Liability of the employer for damages
caused by employees while performing
their duties under the employment
agreement
Liability of the owner of a vehicle for
damages created by the vehicle, if the latter
was driven by another person
Liability of the parents for damages caused
by minor children living with them, if
parents couldn’t have prevented the
damage event
Tortious liability
Damage restoration
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Damage restoration:
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Restoration may include both damages actually
suffered by the affected person and the loss of
profit (if caused by the illegitimate behaviour)
Damage restoration may be claimd even in case
that these could not be foreseeable
Damage restoration may include both monetary
and non-monetary damages (e.g., damages to
health, biological damages, damages affecting a
person’s psychological conditions, etc.)
Tortious liability
Restoration of the original state of facts
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Right to claim restoration of the
original situation (instead of monetary
rights), but only if such restoration:
• is possible and
• Is not too burdensome for the
liable person
Tortious liability
Statutory limitations
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As far as tortious liability is
concerned, the statutory limitation
period is equal to 5 years (instead f
10 years, applicable to contractual
liability).