Carai, Marco (2010) Gli Obblighi di protezione nella prospettiva comparatistica del common law e del trasporto aereo di persone. Doctoral Thesis.
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The Italian category of obblighi di protezione lacks a clear or fixed doctrinal
position. The problem arises from the difficulty in distinguishing the sphere of
application of “contractual liability” from that of “extra-contractual liability”. Thus, it
is not clear whether the protection given to the contracting parties during the
execution of the contract coincides with, or diverges from, the protection given by a
contracting party to a third party who has sustained damages to his person or property
in the execution of the contract.
This research project proposes the comparison with a different juridical system
for history, tradition and remedies: the American one. It distinguishes between duties
fixed by the parties and duties fixed by the law, creating the division between contract
and tort. Although the idea that contractual obligation derives only from a voluntary
act has by now been rejected, the distinction between contract and tort is still linked to
the nature of the act with which the duty has been violated.
The American courts have solved this problem of uncertainty by creating a
hybrid model, the tortius breach of contract. This figure contains elements of both
liabilities. The duty of good faith and fairness is implied in the contract, but the action
granted for the breach of this derives from tort. This phenomenon stimulates the
creation of a unitary theory of obligation, intended to surpass the problematic
distinction between the two units in common law systems.
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