Riparazione del danno extra contrattuale: sistema giuridico romanistico, elaborazione canonistica e prospettive attuali

Roman jurists stated that the reparation or compensation for tortious damage had already been envisaged by the Twelve Tables. In the classical age, the judge envisaged actiones utiles and actiones in factum as reparation for damage inflicted upon property either by failure to act or indirectly. In the Justinian Code the actio legis Aquiliae was considered the general reparation or compensation for any damage caused by negligent behaviours. In fact, the requirements for reparation and compensation have been considered and defined by courts as early as the lex Aquilia. Thanks to the Roman jurists, the actio legis Aquiliae has become a general form of compensation for any damage, based on the criterion of negligence viewed as the lack of due diligence. This structure was transposed in the fundamental text related to compensation for damage in the Canon law, namely the Si culpa tua. Canon 128 of the code in force has reintroduced in the Canon law a provision which lays down the general obligation of compensation for damage. In particular, the Sacred Roman Rota case law pointed to the fact that the damage affecting individuals’ interests had to be unfair, linked to the damaging behaviour by means of an efficient chain of causation and be caused by legal negligence. In its turn, the Canon law had its own impact, thus contributing to the evolution of the provisions on reparation and compensation laid down by the jus commune developed by the jusnaturalistic legal theory. In more recent legal literature, the Canon law reveals more clearly the trends which affect the interpretation and practical implementation of the Justinian legal sources, in line with the general guidelines and mindset of the time. With a view to fully understanding the fundamental aspects of the provisions regarding reparation and compensation for damage, in my thesis I have examined the origins of this institution which I found at first in the Roman law and subsequently in the Roman canon law, without losing sight of its concurrent development in the civil law systems.