FUNZIONI DELLA RESPONSABILITÀ CIVILE E DANNI ULTRACOMPENSATIVI

This comparative analysis of recent trends in common law and civil law countries aims to verify the role attributed to purposes other than the compensatory one, in the domain of tort law. While it is generally undisputed that its main goal is to compensate the victim for her loss, it is controversial whether, and to what extent, it could also pursue other functions. The potential reconciliation between different aims is explored. The British and the US approaches to punitive damages are analysed under a functionalist perspective. Civil law countries show a stronger compliance with the full compensation principle, affirming a clear refusal of any kind of punitive damages. The reasons for this hostility are examined, focusing on the notion of “pena privata”. Against this backdrop, it is contended that in Italy there is a whole range of cases where damages do not seem aimed only at “making the plaintiff whole”. The study of judicial decisions and recent statutory provisions reveals situations where the damages awarded are excessive or in disregard of the victim’s actual harm. Both transpire that, in some circumstances, compensation may not be a sufficient reaction to the wrongdoing. It is claimed that the proclaimed reverence for the equivalence principle may admit some diversions.