The Equalisation of Benefits (Compensatio Lucri Cum Damno) in the Italian Law. A Possible Inspiration for Other European Member States?

Abstract

The Compensatio Lucri Cum Damno concerns cases in which the behaviour of the wrongdoer caused both damages and advantages to the victim. The question is: when and under which conditions such advantages can be set-off against the liable person’s obligation of paying damages? On the contrary, should such mitigation of liability be denied? In 2018 the Italian Highest Courts established principles with regard to these questions, but only with reference to the specific cases submitted to their attention. This article shows how the Italian Courts were inspired by the common principles of European private law and the comparative method with regard to: i) the impossibility of stating a general rule (thus, the necessity of proceeding for categories and classes of cases), and ii) the necessity of looking at the purpose of the benefit, rather than at the causal link between tort and advantages. The author believes that the criteria identified by the Italian case-law for the deductibility of benefits from damages might be of inspiration for other European Member States. Furthermore, it is here highlighted that the Italian Highest Courts made decisions on Compensatio Lucri Cum Damno using an argument explicitly based on the Soft Law and this could strength the effect of the moral suasion within the Draft Common Frame of Reference and the Principle of European Tort Law.