the judge to assess the diligence of the borrower in the bonds must, in accordance with Article 1176 of the Civil Code, the subjective assessment of his behavior with regard to the diligence of good father and, if the content of the obligation is to conduct a professional activity, the nature of the business. In the latter case the obligation is contained in the specialized techniques of activity and the degree of diligence of the borrower, an expert in
professional activity, is higher than the diligence of a good father because, in this case, it make reference to the specific result that involves the obligation assumed. In this regard osservasi as the supervisor or the person undertaking the work, with responsibility for implementation of construction works to be performed on structures or foundations prepared by the customer or by third parties, violates the duty of care set out in Article 1175 of the Civil Code (which requires the debtor and the creditor to operate according to rules of fairness)
if not ensure, within the limits of common rules of art , the suitability of those structures to withstand the additional work entrusted to him and to ensure the success of the investigation and purple, also, the obligation to fulfill duties with fairness and good faith if, having found the inability of these structures, also implemented the execution of the work.
addition, the qualified person undertaking the work must be able to assess how the implementation of work that is entrusted with the execution and to ensure the professionalism and diligence requires that the case: it follows that the acceptance without reservations of any special difficulties in the performance which gives rise to an obligation to be paid by the lender execute it to perfection. The reference to the fulfillment of performance according to the rule of art, which therefore constitutes an obligation of result and not resources, it is important to
- established under Article 1218 of the Civil Code, the debtor's liability which is required to pay damages if you do not run exactly where the benefit payable can prove that the failure o il ritardo è stato determinato da impossibilità della prestazione derivante da causa al medesimo non imputabile;
- permettere al creditore, secondo quanto stabilito dall’articolo 2224 del codice civile qualora il prestatore dell’opera non proceda all’esecuzione dell’opera secondo le condizioni del contratto e a regola d’arte , di stabilire un congruo termine entro il quale il debitore deve conformarsi a tali condizioni, che, se trascorre inutilmente, consente al creditore di recedere dal contratto, salvo il diritto al risarcimento del danno.
Per quanto riguarda la responsabilità penale occorre rilevare che in materia
antinfortunistica le misure indicate dalla legge hanno carattere tassativo e can not be replaced with others deemed equivalent, for if it was felt that a particular accident at work is best avoided by adopting a very specific caution, the recipient must meet the requirements of the rule and if the non-compliance with these, if left, answer the event, unless it proves that the same can not be attributed to the type of event that the rule intended to prevent. Moreover, the respect for rule
art form is of fundamental character in a charge of specific fault consisted in violation of general rules of prudence which regulate the relationship between employer and individual employee. In this regard, the Court states that the ship's cargo, or the officer delegated by him on board, is criminally responsible for the death of a worker when the event are the cause or contributing cause careless preparation of a floor on which the work is performed and load discharge to which the worker was intended. In fact, in the case examined the 'officer had failed to ensure that
in the submerged cabin flooring planks, one above the hatch of the hold, where the worker was carrying out its activities, had been installed in a workmanlike manner, since during the course cargo handling, boards were uneven and, in doing so, it created a vacuum in which the worker fell , trovando così la morte. Le regole d’arte rivestono inoltre particolare importanza nelle norme per la sicurezza dell’impiego del gas combustibile , disciplinate dalla legge 6/12/1971 n. 1083, per le quali (art.1) : “tutti i materiali , gli apparecchi , le installazioni e gli impianti alimentati con gas combustibile per uso domestico ed usi similari devono essere realizzati secondo le regole specifiche delle buona tecnica per la salvaguardia della sicurezza “. L’articolo 3 della stessa legge introduce il principio per il quale: “ i materiali , gli apparecchi , le installazioni e gli
impianti alimentati con gas combustibile per uso domestico e l’odorizzazione del gas , di cui ai precedenti articoli , Designed to comply with specific safety published by the National Standardization (UNI) on a table under the name UNI - CIG, is deemed to be effected in accordance with the rules of good practice for security. The above rules shall be approved by the Minister for Industry, trade and craft. "Article 7, first paragraph, of Law No. 5/3/1990 46 lays down the requirements for installation firms to "run the plants in a workmanlike manner using materials with a view also constructed in a workmanlike manner. The materials and components made in accordance with the rules
safety of the Italian unification (UNI) and the Committee Italian Electrotechnical Commission (IEC), and in compliance with the requirements of the technical legislation in force, shall be considered as constructed in a workmanlike manner. "
In addition, Article 5, first paragraph, of Presidential Decree No. 6/12/1991 447 states that "the materials and components manufactured according to technical standards for the protection of security and UNI CEI and also in respect of technical legislation in force concerning the safety, shall be deemed made in a workmanlike manner.".
The rules of art are also relevant even to the extent required by Presidential Decree No 06/06/2001 380 (Consolidated Law on Construction), for which:
(art. 130) "for the purposes of marketing, features and energy performance of building components and systems must be certified in the manner prescribed by decree by the Minister of Productive Activities, in consultation with the Minister for Infrastructure and Transport. Companies that produce or market the members referred to in paragraph 1 shall be obliged to report on them the details of the future certification;
(art. 134) "if the purchaser or the tenant of the apartment found deviations from the rules of This consolidated, even if not raised by any previous inspections, the municipality must make a complaint within one year of observation, under penalty of forfeiture law of damages by the contractor or owner. " An examination of case law and legislation are cited detects a difference between conceptual art rules and technical standards with different legal consequences. Indeed the two concepts are a clear distinction in the Law 317, 06.21.1986, implementation of Directive 83/189/EEC on the procedure for the provision of the rules and regulations that defines (Article 1):
PRODUCT: products of industrial manufacturing and agricultural products;
SPECIFICATION: a specific legislation contained in a document defining the characteristics
requests to a product such as levels of quality, performance, safety or dimensions, as well as the requirements applicable to the product as regards the name is sold, terminology, symbols, testing and test methods, the ' packing, marking and labeling and conformity assessment procedures;
UNDER : a technical specification approved by a recognized and authorized to issue acts of normalization, with which compliance is not mandatory, and belonging to a category: standards international, European standards, national standards. European standards are international or national standards adopted and made available to the public respectively by an international organization, by a European or a national standards organization;
TECHNICAL RULE: One of the technical specifications or any of the other requirements, including administrative rules that apply to it, referred to in paragraph 2 and however, any specific technical and other requirements, compliance with which is compulsory for the marketing or use of a product on national territory or a major part of it, as well as laws, regulations and administrative provisions of Member States to prohibit the manufacture,
marketing or use of a product with the exception of those specified Article 9, paragraph 6. Constitute, in any case, technical regulations.
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