The ‘ratio' behind article 2049 of the Italian civil code

Abstract

Traditionally, the responsibility of the Master for damages caused by his servant has been an acknowledged principle of Civil Law. The basis of this responsibility is the Roman Law principle 'qui facit per alias facit per se’ which has been reproduced in modem times, subject to exigencies of time and place. The Maltese Civil Code embodies the principle in section 1080; the English system accepts it under the doctrine of vicarious liability, and the Italian Code of 1865 followed the Code Napoleon in a similar provision in section 1153. The 1942 Civil Code says much the same thing in article 2049: 'I padroni e I committenti sono responsabili per i danni arrecati dal fatto illecito dei loro domestici e commessi nell'esercizio delle incombenze a cui sono adibiti’. Materially there is no difference between section 1153(s) of the older Code and the provision of section 2049. The difference is one of principle in that the responsibility of Masters and Employers, founded on a different concept than that of parents and tutors is dealt with in a separate section.