Ancora sugli illeciti endofamiliari : consolidamento della categoria differenziazione interna e prospettive

Abstract

The article analyses intra-family torts, a category that can now be said to be well established in case law as well as in positive terms, in the light of Articles 437 bis (amended by the “corrective” to the Cartabia reform) and 437bis.38 of the Italian Code od Civil Procedure These Torts, resting on a violation of specific duties of family relationships wich causes predomi-nantly non-pecuniary damage, reflect the evolution of family law towards a progressive departure not only from the monistic model of natural society based on marriage, but also from an institutional conception of the family, in the name of promoting the personalist Grundnorm and policy options based on pluralism and solidarity. The author argues that the Tortious liability is more appropriate than the contractual one in order to meet the need for protection that intra-family offences reveal. Such a greater appropriateness is argued on the basis of theoretical assumptions as well as the greater versatility of the tort remedy in preserving the neutrality of certain behaviours that fall below a threshold of tolerance. The essay also focuses on the description of a sort of growing internal dif-ferentiation between offences concerning relations between spous-es/cohabitants and those concerning parent-child relationships. The diver-gence is evident and, to this end, the essay highlights some indications drawn from case law, particularly with regard to the exordium praescrip-tionis of the right to compensation, proof of damage and its quantification.