Examples I: Italy

At the beginning of the nineteenth century, Italy was exposed to the impact of the French codification. This happened first with the entry of Napoleon’s army into the Italian territories and then, after Napoleon’s fall, with the adoption by some of the Italian states of Civil Codes which replicated the provisions of the French Civil Code on tort liability.

With the creation of the Kingdom of Italy in 1861, the French model became the main source of inspiration for the first Italian Civil Code, enacted in 1865. The code of 1865 adopted a general provision on tort liability based on fault in its art. 1151. That provision became the cornerstone of tort liability up until the enactment of the Civil Code of 1942. Following the French model, after that key provision, the first Italian Civil Code inserted other articles that provided different heads of liability.

For over a century, the dominant view among academic writers was that fault was the only proper basis for the system of tort liability. They resisted the idea that liability without fault could be a legitimate ground of liability too. The productive tension that existed between the letter of the code and its dominant interpretation, which was taken on board by the Italian Civil Code enacted in 1942. In the twentieth century, the reach of the general rule on liability for fault was at first limited by various techniques for the selection of protected interests and by a restrictive notion of harm. These fell out of favour in the second half of the twentieth century after it was criticised by academic writers and by the constitutional court (established in 1958). It was realised that talking about rights and protected interests did not solve a great deal when the rights held by different people conflicted. Once more, in the latter part of the twentieth century, the letter of the code faced the challenge posed by the combined effects of the legacy of the past and of new theoretical views about the structure and aims of tort liability.