1. Private and Public law Statutory periods. Tortious liability.

2. The impact of time over legal relationships: the statutory limitations

3. Statutory limitations _________________________________
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.

4. Statutory limitations _________________________________
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

5. Statutory limitations _________________________________
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

6. Statutory limitations _________________________________
What is the rationale?
Need for certainty in legal relationships
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)

7. Statutory limitations _________________________________
The norms regulating statutory limitations are mandatory provisions of law:
are the parties allowed to deviate from them?
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

8. Statutory limitations _________________________________
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

9. Statutory limitations _________________________________
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)
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)

10. Statutory limitations _________________________________
Limitation periods start running from the day when the relevant rights could have been exercised

11. Statutory limitations _________________________________
If a right was subject to a condition precedent, limitation periods start running from the day when the condition was fulfilled

12. Tortious liability

13. Tortious liability _________________________________
Liability “in tort”
(responsabilità extra-contrattuale)
A damage is created but it is not related to a breach of an agreement.

14. Tortious liability _________________________________
Main topics
The provision of art 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

15. Art. 2043 of the Civil Code _________________________________
Tortious liability
Art of the Civil Code _________________________________
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”)

16. Art. 2043 of the Civil Code _________________________________
Tortious liability
Art of the Civil Code _________________________________
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

17. Art. 2043 of the Civil Code _________________________________
Tortious liability
Art of the Civil Code _________________________________
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

18. Fraud and negligence _________________________________
Tortious liability
Fraud and negligence _________________________________
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”)

19. Fraud and negligence _________________________________
Tortious liability
Fraud and negligence _________________________________
Fraud: a person aims at achieving a goal which is prohibited by law; the person intention is to breach the law.

20. Fraud and negligence _________________________________
Tortious liability
Fraud and negligence _________________________________
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)

21. Tortious liability
Ability to understand and take action _________________________________
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

22. Link of causation _________________________________
Tortious liability
Link of causation _________________________________
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

23. Exemptions from liability _________________________________
Tortious liability
Exemptions from liability _________________________________
No tortious liability may arise if:
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)

24. Tortious liability
Liability linked to another person’s behaviour _________________________________
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

25. Damage restoration _________________________________
Tortious liability
Damage restoration _________________________________
Damage restoration:
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.)

26. Is not too burdensome for the liable person
Tortious liability
Restoration of the original state of facts _________________________________
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

27. Statutory limitations _________________________________
Tortious liability
Statutory limitations _________________________________
As far as tortious liability is concerned, the statutory limitation period is equal to 5 years (instead f 10 years, applicable to contractual liability).