Anticipazioni antiche di un moderno sistema di responsabilità civile. Dalla lex Aquilia alla tutela aquiliana del credito

Abstract

The possibility of compensating the violation of a relative right in a non-contractual context represented a decisive turnaround for the modern developments of the Italian civil liability system. The analysis of the Aquilia law, dating back to the third century b.C., demonstrates that this result, identified as absolutely modern by scholars and case law, is not really to be perceived as such. In particular, caput II of the law already established a starting point for a possible non-contractual credit protection: it referred to the guarantee granted to the creditor for fraudulent debt release related to a person different from the holder of the obligation. From the interpretative extension operated by the praetor blatantly emerged that the legislative dictation should not, therefore, refer exclusively to the right of ownership, but rather to the violation of any patrimonial interest. In fact, the granting of a pretoria action to the tenant of the land with respect to the damage caused to the crops by a quisque de populo; and to the heirs, for the destruction of the testamentary tables, were tangible signs of the versatility of the Aquilian action for the protection of broader rights than absolute ones.