The Elastic Typicality Deep Inside the Prism of the Non-Pecuniary Damage

Abstract

This article concerns the Italian element of the “tipicita” of non-pecuniary damage (used to limit the non pecuniary damages payable by those who are not) and the thesis argues that today, in the context of a European Italy, (especially after the Treaty of Lisbon and so after the Nizza Charter of the fundamental rights of the EU) the limitation that seems to have been introduced by the case law in the Italian system of civil liability is not a true problem but rather a useful tool designed to achieve the full protection of the person and so the full compensation of the damages occurred. Under this perspective the excluding element of “tipicita” has not functions of limitation but rather only illustrative and explanatory. Otherwise it should be recognized that the Italian system is contradictory with himself which, on the one hand, demands the fullness of the compensation of the losses and, on the other, limits this full compensation principle.