The growing number of domestic animals in Italy, especially pets: this fact makes it useful to recall some of the legal implications for their possession and use. In particular, according to the law, the owner is always responsible for the damage caused, regardless of whether it is assigned to another person.
In terms of damage caused by animals, a distinction must be made, alternatively, the responsibility of the owner and the person using it for the time being. Using an animal means exercising an effective governing power over it that usually belongs to the owner, whether it arises from a legal or practical relationship. This means that what is important is not the purpose (economic gain or not), but the manner in which the animal is used by the government, which usually belongs to the owner.
This follows from the aforesaid, therefore, the responsibility usually rests on the owner, as he uses the animal. For the obligation to influence another person, the owner, legally or de facto, must deprive himself of this faculty, while if the owner continues to interfere in the management of the animal, he continues to use the same animal. , Through third parties, however, remains liable for any damages.
The policy was upheld by the Supreme Court by sentence no. 5825/2019, which now seems to have put an end to years of controversy over the nature of liability for damages caused by pets.
Let’s go in order. The issue of liability for damage caused by animals has trivial and historical roots. The first written rules in this regard date back to the time of Roman law, when man used animals to carry out his productive activities.
Over time, human coexistence with animals has taken on diverse characteristics, evolving into more or less intimate relationships, according to our culture and our needs. However, what remains unchanged is that they need to control liability from time to time for any damages that may occur to third parties.
Obligation of custody and surveillance is in force
In our country, affection for pets is well known. Think so, according to the information published in the report Assalco-Zumark, About 60 million, have one-to-one relationships with residents. Animals, on the other hand, contribute to human well-being, especially in the context of high stress, as we have been forced to do in the past two years. It is no coincidence that with the advent of epidemics and the inevitable increase in mode of work Smart workGrowing up people who are determined to get a pet.
Outside of our loved ones, there is still a lot of activity – and thankfully – through animals. Think of dogs trained to search for missing persons, drug dogs trained by the police, or guide dogs for the blind. Think equestrian competitions, pet therapy and so on.
The owner / guardian of the latter shall hold a position of guarantee, from which the obligation to custody and supervision is met with all due diligence in order to avoid and prevent a situation where the source of responsibility. However, it can happen that, despite the care and diligence taken by the owners, the animals cause harm to third parties due to their size, instinct, exuberance and other ancillary factors.
The ratio of the property to the corresponding object
The owner or anyone who uses it will be asked to respond in accordance with the policy, which is still in force in our legal system. Quas comoda eius and incommoda, Because of which the person who benefits from a situation (either because of the owner or because of the existing relationship), also has to bear the disadvantages. This net of exemption granted for discharge of liability (in this sense, Cass. Civ. 13848/2020).
Discipline, partly degrading from what is provided by art. 2043 CC, available in industry. 2052 CC, which states that “an animal owner or anyone who uses it while using it, is responsible for the damage caused by the animal, whether it was in its custody, lost or escaped, unless it makes an emergency attempt.”
This form of liability is often integrated with the things in custody by nature and condition, according to the industry. 2051 of the Italian Civil Code. Indeed, the similarities between the two disciplines include the system of understanding of evidence (which fortunately provides for the disclosure of liability) and the presumption of the existence of a custody relationship, which in a case relates to inanimate objects. , Among other animals.
Is the burden on the owner or on those who enjoy the use?
Indeed, the nature of liability for damage caused by animals has long been debated, and two contradictory approaches have been made. According to the traditional thesis, in fact, the one responsible for the damage caused by the animal is the one who has the effective power to control it and therefore, the one who protects it, for whatever reason.
According to a different (and now prevalent) adaptation, the responsibility for the reality of animals will go beyond custody and will instead fall on the person who actually uses it (in this sense Monateri, La Liability, Tratt) Saco, Turin, 1998, 1061). . For this thesis, the basis of responsibility will actually be the use of the animal, which is not in custody, but can be used to benefit from it according to the nature of the animal and its nature. Economic and Social Destinations (Vicentini, Short Agreement on Civil Liability, Padua, 1996, 665).
In this sense, first of all, the historical source of law has been established, dating back to the time when animals were mainly used as work force. Although this data seems somewhat irrelevant today, the perfect circulation of pets compared to “working” animals, even the literal interpretation of art. 2052 CC would seem to support this thesis, pointing to the owner or “using it for the time it is being used”, thus benefiting from it or at least a benefit from it. Technically, the keeper makes no use of the animal. The most recent jurisprudence is also based in this sense (Cass. 10189/2010; 2414/2014).
Guardian as a damaged third
According to this adaptation, then, not only can the caretaker be called to answer, but he can also be considered an injured third party (think of the manager of an animal boarding house if he is attacked by a dog admitted to the hospital there). Conversely, a person who benefits from the use of an animal cannot be considered an injured third party as a recipient of compensation. For the Supreme Court, in fact, the “Rule of Article 2052, which states that anyone who uses an animal is liable for damages for the time he is using it, has the basis to use the animal for its own benefit and for its own purposes, even Compensation must be paid for all damages to the third party in connection with the aforesaid use, even if not economic; To whom he assigned this activity “(Cass. 10189/2010).
Finally, regarding the nature of liability, the conventional thesis considers it to be a case of strict liability. The only exception would therefore be represented by evidence of unnecessary occurrence and, therefore, non-existence of causal link between use and occurrence of event, lack of error cannot be observed (in this sense Cass. 7260/2013).