The “social contact”: the school is responsible for the pupil

The article 1173 c.c. states that to be a source of obligation are not only the contract or tort, but also << […] any other act or fact capable […] >>.

It should be added that Article 1176 c.c. It requires the debtor's obligation to fulfill its obligations with diligence.

This standard distinguishes, two types of diligence and in particular that c.d. “of good family” mentioned in the first paragraph, more general, applicable in most cases; as well as the c.d. “diligence qualified” in the second paragraph, on relations between professionals, which it must be assessed in relation to the type of activity.

Well, settled case-law (out of the many Cass. 24071/2017), in interpreting the provisions of article 1173 c.c. and our era's thesis c.d. “social contact”, He states that there is an obligation whenever someone agent is vested with a certain status, that attribute the duty of social solidarity – and then drag in accordance with Article 1176, 2° which c.c. – even in the absence of a real contract.

Therefore, by that "social contact" descended mutual obligations of good faith, protection and information - in accordance with Articles 2 Cost., 1175, 1176 e 1375 c.c. - that although the objects of the contractual performance, They are otherwise involved in the realization of a programmed negotiation result.

Notwithstanding the foregoing, with the ordinance 20285/2019 the Supreme Court came to confirm that in case of damage to the pupil there is a responsibility “qualified social contact” Institute custodial school, on which affect the protective duties, enucleated Articles. 1175 e 1375 c.c., that impose the control and supervision of the minor or incapacitated person does not intervene until another subject equally responsible.

In this case the Ministry of Education and Research (MIUR) and insurance companies R.M. s.p.a. They resorted to the quashing of the judgment of the Court of Appeal of Lecce, with which he was found responsible for injuries sustained by S. C., at the age of 8 years, while he is preparing to get out of school, occurred due to a violent collision of the hand on the glass of the exit door, where his father was waiting for him.

Supreme Court, in rejecting the appeal, It noted that the assessment of responsibility in terms of the commission of a tort case also omitted from consideration in a contractual standpoint, because the dangerous conditions for the third frame, in turn, They would require greater care in the custody of children in the output stage, detecting those aspects regarding the obligation of supervision on the monitoring mode made specifically foster the cooperative.

The outsourcing of functions of supervision of minors or incompetent does not involve an exemption from contractual liability which is required in via the primary contractor who, persisted the duty of vigilance in relation to responsibility “qualified social contact” that involves taking the cd. protective duties, enucleated Articles. 1175 e 1375 cod.civ.

As a result that, in such a case, protection duties remain on the institution school, and at the same time impose the control and supervision of the minor or incapacitated until intervenes not another subject equally responsible, called to succeed in the assumption of duties related to the relative position of guarantee that, obviously, It may not coincide with the subject which is assigned only a portion of the functions that compete caregiver.