Recent developments in Italian Civil Law on compensation for non-pecuniary damage

Sconamiglio, Claudio (2024) Recent developments in Italian Civil Law on compensation for non-pecuniary damage. In: Codification of Civil Law: Assessment, Reforms, Options. Legal Heritage . Central European Academic Publishing, Miskolc–Budapest, pp. 491-519. ISBN 978-615-6474-72-8 ISBN (epub) 978-615-6474-73-5 ISBN (pdf) 978-615-6474-74-2

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Abstract

The problem of compensation for non-pecuniary damage has become particularly important in the context of the Italian doctrinal and jurisprudential debate. In fact, the Italian civil code of 1942 had established a rule of compensation for non-pecuniary damage only in cases provided for by law (art. 2059); this rule was initially intended to limit the area of compensation for non-pecuniary damage to cases in which the illicit act also constituted a crime. This original approach was however overcome thanks to the enforcement of the 1948 Constitution, which placed the protection of human personality at the centre of the system, affirmed by art. 2 of the Constitution, as well as with reference to specific personality profiles, including the right to health in art. 32. The remarkable aspect of this evolution is that the constitutional principles just mentioned were concretised by jurisprudence, thanks to the reconstructive contribution of the doctrine, without a modification of the normative data, as regards the civil code. This has determined, in the matter under discussion, and from the point of view of the method of evolution of the system, an approach very similar to that of common law. A similar methodological approach has also been found in recent years with reference to the issue of proof and settlement of non-pecuniary damage. This is an aspect that represents the privileged key to understanding the entire thematic area of non-pecuniary damage; in fact, and since non-pecuniary damage cannot be immediately traced to an evaluation using market criteria, it is necessary to find techniques to compensate for it otherwise. Further, from this point of view, the Italian legal experience is characteristically peculiar considering the widespread use of tables for the settlement of non-pecuniary damage so as to ensure the need for predictability and fairness.

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