Risk and strict liability

Trimarchi sets out to determine whether and how the Italian legal system recognizes a principle of strict liability for ‘risk of the enterprise’, in his monograph Rischio e Responsabilita Oggettiva (Trimarchi, 1961),¹ where such liability is analysed according to its function and structure.

1. function of the rules concerning the strict liability for the risk of the enterprise in the Italian legal system;

2. scope of applicability; and

3. parameter of the risk.

Although Italian legislators did not intend to adopt a general system of strict liability (see the illustrative commentary of the secretary of state in the 1942 civil code), the Italian legal system introduced the concept of strict liability in some special cases of civil responsibility. According to Trimarchi, two different perspectives explain its introduction: on one hand, a detailed examination of some rules of the Civil Code (articles 2049, 2051, 844), of the Navigation Code (articles 965, 978) and of the special legislation (29 July 1927, no. 1433, articles 10, para. II, and 31) may explain it, on the other, ‘the actual economic and social needs and their intensity, and the fact that the strict liability for the risk of the enterprise has been affirmed by most indus­trialized nations’, could also provide an explanation. Trimarchi studies the function and structure of strict liability in relation to the various concepts formulated by the modern legal doctrine, and proceeds to establish which of them may be considered realized or realizable and in harmony with the rules of the Italian legal system.