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THE ADJUSTABILITY OF COURT-ORDERED MONETARY JUDGMENTS IN CONTRACTUAL AND EXTRACONTRACTUAL LAW. A DOGMATIC ANALYSIS OF OBLIGATIONS OF SUM AND VALUE AND AN EMPIRICAL STUDY OF JUDICIAL BEHAVIOR
The aim of this paper is to explain the asymmetry of judicial decisions con- cerning the date of accrual of the readjustment of judicial sentence to a sum of money in cases of breach of contract and torts using dogmatic concepts and tools of the legal theory. Without basing itself on these, judicial practice assumes in the interpretation of the law the categories of obligations of sum and value and of being obliged and being liable. To do so, we analyzed seventy one cassation judgments of the First Chamber of the Supreme Court, randomly chosen and handed down between 2008 and 2023. All of them condemn to a sum of money, either as compensation for damages (contractual or non-contractual) or for the return of a non-paid debt, but assume different criteria on the different periods for the accrual of the adjustment granted. Despite the disparity of criteria, there is, in broad terms, a certain uniformity, which is consistent with the jurisprudential category that distinguishes between obligations of sum and of value. This paper aims to show that this coherence is not the product of chance, but that the judiciary intuitively adopts decisions that reflect these jurisprudential categories when interpreting the law. Finally, we intend to collaborate with the effective development of a practice of following precedents, which is essential in a State governed by the rule of law, by showing its necessity and possibility.
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RAWLS AND TORT LAW: A CRITIQUE OF RIPSTEIN
The article challenges Arthur Ripstein’s theses on the place of private law (and tort law in particular) in John Rawls’ theory of justice. According to Ripstein, Rawls’ theory of justice grants private law a certain independence by exempting it from the distributive injunctions of the principles chosen in the original position. This conclusion has two bases, one negative and the other positive. On the negative side of the argument, Ripstein claims that Rawls’ original position does not lend itself to guiding the design of institutions, especially those institutions with a deontological structure such as tort law. On the positive side, Ripstein resorts to the idea of a division of responsibility between citizens and social institutions (an idea that Rawls presents in “Social Unity and Primary Goods”) to demonstrate Rawls’ commitment to a pre-institutional conception of ownership and to the independence of private law that would ensue. The article argues that Ripstein is wrong in neglecting the role of the original position and the principles chosen in that position and exaggerates the consequences for private law of the division of responsibility between citizens and institutions.
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JURISDICTION AND APPLICABLE LAW ON LIABILITY FOR CROSS-BORDER ENVIRONMENTAL DAMAGE: THE EUROPEAN UNION’S SYSTEM
The rules of private international law in the European context have evolved considerably since 1970. Such rules applied to trans-boundary pollution problems pose greater environmental and people protection because of the possibility to make use of favor laesi principle, which allows choosing the forum and applicable law of the place where damage originated or where damage occurred. however, Directive 2004/35/EC, which regulates the environmental or per se ecological damages, contains no enough rules of private international law producing a number of problems with the Regulations that discipline the competence and the law applicable to extracontractual civil liability cases (respectively, Brussels i and Romeii). This paper aims to identify and expose all these rules in an orderly manner to demonstrate the conflicts warned by the doctrine.