Private and Public law Statutory periods. Tortious liability.

The impact of time over legal relationships: the statutory limitations

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.

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

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

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)

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

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

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)

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

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

Tortious liability _________________________________ Main topics 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

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

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

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

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”)

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.

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)

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

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

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)

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

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.)

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

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).