obligation of supervision remains with the parent; the interpretation of the consensual intention excludes the assumption of the duty by the restaurateur, nor is this function part of his ordinary activity. The question of compensation for non - pecuniary loss has been discussed in cases where, after undertaking to organise a wedding dinner, a so - called banqueting company has failed to perform. According to the decision8, the “injury is compensable even in the absence of the infringement of an inviolable right, if the prerequisites of liability for non - performance are met, since the loss suffered may also consist of non - asset damage”. Case law has elaborated a unitary notion of non - asset damage and has specified that, “except in cases determined by law, compensatory protection is given only if it is established that an inviolable right has been infringed; there must be a qualified injustice”9. This principle has been extended to contractual liability. Thus, “if the non - performance causes, in addition to the injury of economic interests, the injury of an inviolable right, compensatory protection may be the consequence of contractual liability”10. In the case cited, the breach did not result in any damage to an asset of constitutional rank; in fact, the newlyweds suffered inconvenience caused by the “bad impression” in front of their guests at one of life’s unrepeatable moments, but an inviolable right was not infringed. Although the reasoning is questionable, the decision is supportable in its ultimate outcome, because the damage is to the image and, therefore, compensation is due. This category includes facts that damage credibility even in circumscribed environments, such as family or close friends, on the occasion of events of particular social significance, such as marriage. Less complex and entirely acceptable is the decision11 that excluded the contractual liability of the restaurateur for the accident suffered by a customer who had taken part in the throwing of plates on the ground during New Year’s Eve celebrations. In this hypothesis, there is no etiological link between the event and the provision of the service; in fact, it cannot be part of the agreed obligations to put an end to a dangerous activity, in particular if the injured person takes part in it on his own initiative. Moreover, it is a sudden and unforeseeable behaviour, with an improper use of the goods intended to allow the food to be consumed, so that no precautionary rule has been violated by the company. 8 See Trib. Rome 13 July 2009, in Resp. civ. prev., 2010, 21. 9 See Cass. 11 November 2008, no. 26972, in Dir. giust., 2008, 12. 10 See Cass. 11 November 2008, no. 26972, cit.. 11 Cf. Cass. 15 February 2003, no. 2312, in Contr., 2003, 708. 24 CHIARA TINCANI
RkJQdWJsaXNoZXIy MTE4NzM5Nw==