Francesco Zecchin

Ownership is a topic that follows social, economic, and political changes more than others. On the other hand, the same rules established from time to time, in turn, influence the social, economic, and political vision of the people. As a result, ownership will play a crucial role in the current process towards achieving sustainability, but from this point of view, its long history cannot be neglected. For a long period of time, even if the Italian mainland was divided into several legal systems, property law expressed everywhere the idea of sovereignty: being an owner was like a status which ensured supremacy over lower social classes. When in the nineteenth century Italy was legally unified, ownership was ruled in the light of liberalism and, theoretically speaking, every person could have property, and enjoy it without any interference by public au-thorities. This view was outdated by the 1948 Italian Constitution, which directs ownership to the social function, as well. However, in the last decades, the sus-tainability paradigm has taken the stage, and the paper addresses the issue of the relationship between property law and sustainable development. Within the framework of Italian private law, the writer aims to check if this new outlook can be accepted into the current legal system, and how it might be developed.

The paper addresses an emerging question on social sustainability.
Namely, some European systems, and recently European Union too, have focused their attention to the duty of a supply chain’s dominant undertaking regarding human rights of all workers involved in the manufacturing process, even those who are employees of other companies. From this perspective the essay argues that also a client of a megaproject - as any other companies that are in a leading position of its business - might has such a duty. After all, their implementation requires connected performances of several parties, whose content is influenced by the client, perhaps more than a company which is at the top of its line production. Protection of worker’s human rights is then a matter not entirely in the hands of contractors, because their choices are often affected by the will of the client. As a
result, who commissions a megaproject has a duty of protection to human rights of all employees involved in the implementation, and in case of a violation that can be tied to its choice, it will have to answer, in similar terms as a dominant undertaking in a supply chain.

The essay deals with the problem of social sustainability into the meat supply chain, especially from its workers’ human rights point of view. Of course employees’ human rights should be above all protected by employer. However, when the latter is involved in a supply chain, its decisions are not utterly free, but influenced by the market and, often mainly, by the willingness of the dominant undertaking, at least indirectly. As a result, violation of human right could be tied not just to a choice of employers, but to the decisions of the company which is the leader of the supply chain. From this perspective, the writing first analyses the task of each employer of a meat supply chain regarding the human rights protection of its employees. Then, it checks if there is any chance to involve the dominant undertaking in protection human rights of the employees who work for the others company of a meat supply chain, despite the “privity of the contract” principle. The research takes inspiration from both the experience of some foreign legal systems and recent European Union acts related to this field.

The writing deals with the problem of the current inflation’s level in megaprojects, in order to avoid that it leads to their failure. Firstly, the paper focuses its attention on the megaprojects’ contracts concluded when the purchasing power has been low and stable for a long time. In relation to these cases, the present devaluation of money is an extraordinary and unpredictable event, at least because it is due mainly to the war between Russia and Ukraine, and partly to the long Covid19 economics effects too. As a result, both under many European contract laws and international models it can be addressed in terms that involving, directly or indirectly, the client in a renegotiation, whose goal is to rebalance the megaprojects contract’s performances considering the new reality. Secondly, the author tries to identify best practices in relation to contracts that has been concluded when the inflation was already at current level, or it was predictable that it would have been such a strong rise. In these situations a good solution would be the so-called stabilization clauses, as foreseen by a recent Italian statute in the field of public procurement, and for megaprojects contracts by NEC and Fidic models.

The essay deals with the problem of social sustainability into the international supply chains, especially from the workers’ human rights point of view. After showing the potential offered by the private law in this field, as it seems proved by some soft law instruments, the author analyses the recent French and German legislations, which provide a so-called human rights (and environmental) due diligence obligation for the company leaders of an international supply chain. The final part of the writing is dedicated to the Italian law system. On the one hand, it sets out the main content of the Proposal for a Directive of the European parliament and of the Council on corporate sustainability due diligence and amending Directive (EU) 2019/1937. On the other hand, it aims to check if, in accordance with the employees who work for the others foreign company of the supply chain.

The essay addresses the issue of the so-called multilevel protection
of human rights from the civil liability point of view, with
reference to non-pecuniary damage, particularly. Having identified
the methodological problems in the specific context of private law, the
author analyses the case law position and the views expressed by
other authors in relation to the value of the European Convention on
Human Rights and the European Charter of Fundamental Rights
within tort law. Due to their different position in the sources of law,
the writing treats separately the hypotheses that the violation concerns
a right provided for in one or in the other. The right to property
(Art. 1 — 1st Protocol of the ECHR) and the right to protection of
personal data (Art. 8 Charter of Nice) are taken into consideration as
cases study.

An analysis of the role of private autonomy in megaprojects contracts to face government restrictions due to Covid-19, or to other future pandemics, will be presented. The starting point will be the solutions that can be achieved follow- ing the rules contained both in the most used international contractual models (FIDIC and NEC) and in contract law, relating to deals concluded before and after February 2020. Then, the essay will try to identify models by which – since a pandemic is no longer an unforeseeable event – it is in advance established by the parties what would happen in case that Covid-19 restrictions were restored or a similar situation arose again, in whole or in part. In particular, the aim of the investigation is to find solutions that do not allocate the entire pandemic risk to the contractor or the client, as general or specific contract rules already do imposing a compensation. On the contrary, the purpose is to go over the “all or nothing” rule and attempting to allocate the pandemic risk in such a manner that megaprojects, if it is still possible, can successfully proceed.

The writing is a comment on a decision of the Italian Supreme Court, in plenary session, about public authority’s precontractual liability (n. 615/2021). It follows other recent judgements, always related to an unfair behaviour of a public entity, by which the so-called culpa in contrahendo does not have extra-contractual nature anymore. It is, on the opposite, governed by the rules of breach of contract. This is since in case of an administrative procedure, as it happens in the other types of precontractual liability, the private party and the public authority are no strangers to one another, but they are linked by a specific legal relationship. And it is not an issue that there is no a contract, because “contractual” liability qualification, as many Italian and foreign authors have clarified, does not refer only to the contractual obligations, but also to any case of obligation, also the ones arise from the good faith. However, the writing points out that the involvement of a public entity makes some differences. First of all, the goal of an administrative procedure is not a contract, as it is in case of private negotiations. But above all public entities, thanks to their status, have a discretionary power related to the administrative action wider than the one of private parties. This means that this power has to be rightly used even more than between private negotiations, and the public authority precontractual liability’s does not concern the administrative action validity, but the procedure before it. It is not by a chance that in the case in front of the Court, the administrative action was not even issued. That is mainly why the authors speak of “pre-action” liability instead of precontractual one, and they highlight the peculiarity of public body’s duties of protection, relating it to damages, as well.

Therapeutic alliance is in the last decades subject to a depersonalization process. One of the direct consequences is the increase in medical litigation. The writing, in dialogue with the Church’s Magisterium, attempts to identify how private law can promote new forms of personalization of medical treatment and thus reduce litigation.

The essay analyses the new regulation of non-pecuniary damages submitted by the law proposal no. 1151/2019. Once explored the reasons why to intervene in the field of torts and liability for breach of contract, the author addresses the problem of non-pecuniary damages from a systematic perspective and suggests some de iure condendo solutions.

While megaprojects are widely investigated from an economic point of view, there are few studies that analyse them from a legal perspective. The purpose of this paper is to begin to fill this gap, delving into the role that contracts play in the implementation of megaprojects. Given the absence of any international legal framework of reference, the most commonly used contractual models (FIDIC and NEC) will be taken into consideration. After examining the main clauses of such models, their compatibility with the Italian legal system will be explored.

This writing analyzes, from a diachronic point of view, medical malpractice and how it has been impacted by the Italian law 8 March 2017, n. 24. The study shows that recognizing doctors directly liable in tort (art. 7) introduces a separation between form and substance. This separation arises problems of constitutionality in “intramoenia” cases and of juridical qualification regarding the relationship between doctors and healthcare facilities. There are also some critical issues about compulsory professional insurance rule (art. 10); some of them would have been avoided by providing an equivalent obligation for insurance companies. Finally, hospitals’ and insurance companies’ right of redress (art. 9) seems inconsistent, because it presupposes a discretionary power to doctors, which has been denied, in general, by the law.

The article deals with the issue of agri-food producer protection in the light of the transition from a rural economy to a market economy. One consequence of this change is that bargaining power has moved from landowners to mass-market retailers, who can impose unfair trade practices, especially by a new form of juridical relationship, called vertical integration contract. Therefore, the traditional protection system, based on the idea that the farmer’s problems arise from the fact that he is not the owner of the land, has become unfit. The A. analyses the development of the legal approaches to address this modern version of unequal bargaining power in the food supply chain.

“Wrongful” life claims are suits brought on behalf of impaired child against the doctor who negligently failed to diagnose or inform the parents about potential birth defects. The Author addresses the issue through a comparative research crossing European legal systems. He puts his attention on difficulties faced by different Courts in framing the action in civil liability, regarding injury, causation and damages.

There was a time in history when Italian and English tort’s structure had lots in common. Nowadays, instead, it’s not like that anymore, in particular if the plaintiff claims a non-pecuniary damage. Also in this case negligence is based just on the breach of duty of care, whereas the Italian Corte di Cassazione has clarified that a violation of a constitutional human right is demanded to the application of art. 2059 c.c. When to come into consideration, however, is the protection of health, the practical results tend to coincide to the point of bringing out a convergence on the need for an objective approach towards this right. In the perspective of European harmonization, the A. focuses his attention on how this concurrence has been possible and which stumbling blocks torts law had to overcome in both countries.

When the doctor recognizes a deformities of the foetus just near the birth, the mother can claim damages for violation of the right to abortion provided that there has been causation between the breach of contract and the wrongful birth. The Italian Corte di Cassazione turns one’s attention to how the judge can check that if the mother had been informed, the law condition for the abortion would have been completed and she would have chosen interrupting the pregnancy. The A. discusses the various possibility in the light of breach of contract rules into the different steps of the relationship between the doctor and the mother.

The A. analyses the hypothesis if a defendant who does not enter in appearance can claim damages for the violation of Art. 6 of the ECHR, which declares that everyone is entitled to a fair and public hearing within a reasonable time. The Italian Corte di Cassazione considers that default does not represent a barrier for this opportunity, although damages could be reduced if the defendant had gained by the unreasonable time of the case. However the assumption of this solution is that there is an obligation between the defendant and State, so damages does not originate from a tort, but from a violation of a duty to performance.

The A. focuses on the case of parents of a child born with deformities, which were recognized only near the end of pregnancy by the doctor. So they had claimed damages for the violation of right to abortion. The research attempts to face the issues regarding possibility to recover pecuniary and non-pecuniary damages from wrongful birth, both in terms of checking the hypothetical existence of the requirements for interrupting the pregnancy, both about the objective and subjective qualifications for allowing the claim for compensation in the system of civil liability for breach of contract.

From the last quarter of the past century, Article 2059 of the civil code has been the subject of several rulings, which have tried to fit it to the personalistic principle expressed by the Constitution. In 2008 the Court of cassation achieved one of the major breakthroughs, finding that non-pecuniary damage is compensable not just when expressly provided for by the law, but also if tort infringes a human right. However, this solution is fraught of problems. Generally speaking, in terms of mere juridical interpretation it is a matter of finding a connection between the rule of Article 2059 and the principle of art. 2 cost. From a specific point of view, it is necessary to strike a balance between the pluralism that characterizes our era and the typicality principle. If it is not clear which interests shall be considered as human rights, the legislator choice (typicality) is likely to be practically neutralized with an indiscriminately widening of civil liability. A similar problem arises when a human right has been infringed within the framework of an obligation. Through “duties of protection” non-pecuniary damage suffered by person involved in a contract is compensable according to the breach of contract’s rules. But the instability in the debate about Article 2 cost. could lead to a general compensation of these kind of harms, going against the law of obligations. Moreover, this approach does not address the nowadays main issue of contractual non-pecuniary damage, i.e. the possibility of recovering non-economic expectation interest that performance would have satisfied. Increasingly often the claim for damage concerns this type of loss, but the Italian law system, at least in formal terms, is indifferent to this respect. While our law opened to compensation for non-pecuniary damage resulting from an aggression against human being, this is not valid also for the non-economic advantages that creditor would have obtained through the service. All these circumstances make necessary a study that systematically reconstructs the discipline of non-pecuniary damage. Once verified the actual extent of the limitations that Italian legal system opposes to its compensability, the book tries to ascertain the existence of juridical reasons still capable of justifying them and, in case not, proposes new solution models.

Following the outline of international models (FIDIC and NEC) and taking into consideration the Italian contract law, the writing lays out the role of private autonomy in megaprojects contracts to face Covid-19 or other future pandemics restrictions. In particular, the A. takes into account the fact that they no longer represent unpredictable events and, therefore, cannot be overlooked during the negotiation of a new megaprojects contract.

The writing gives an overview of the role of the contracts in so called megaprojects. After analysing some of the general principles underlying the contracts models prepared by the FIDIC and the ICE, it compares such principles with the basic ones that governs contracts in the Italian legal system.