LA FORFETIZZAZIONE LEGALE DEL DANNO RISARCIBILE

ABSTRACT The topicality of the debate concerning the possibility of civil liability to have a punitive function in our legal system can also be dealt with from the perspective of the legal predetermination of restorable damages, which is topic less studied by legal scholars than penalty clauses. The first chapter contains a survey of the most relevant cases of legal predetermination of restorable damages aimed at questioning the relevant structure, functions and major issues. Thus, the conclusion is reached that the concept of legally liquidated damages is only descriptive, being an instrument by which the legislator intends to realize heterogeneous functions. Accordingly, it is impossible to have only one legal category which is subject to a sole discipline. In the second chapter, the cases of legal predetermination of damages are divided in three groups, according to the prevalent function that the restoration of damages has: compensative, punitive or indemnitary. The conclusion is that civil liability may have a punitive function, that must be supported by a provision of law, in absence of which the judge cannot deviate from a merely compensative principle. The classification in three groups, the analysis of the structure and the functions of legal predetermination of damages allow to answer to some practical questions, concerning the legal predetermination of damages and infer some practical suggestions for a correct use of such instruments.