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L’uso giurisprudenziale della comparazione giuridica in ambito civilistico

Daniele Rivieccio    



Use case law of comparative law in civil context. This paper contains a general examination of methodological approaches to comparative law followed in civil case law. The phenomenon has in fact become of encreasing relevance with the globalization has resulted in a increase in legal systems that come in contact with our legal system. In this light is conducted here a preliminary analysis of the formal strictures contained in our positive order, justifyng in part of our jurispudence recalcitrant attitude towards use of foreign law in their decisions. The subsequent case study analysis of the decisions have been two main trends, one of the necessary application, when the case informed the judge has given to foreign elements and an optional application, in all other cases. Amongst these, some pronunciations usings marginally foreign law as a mere “frills” of the decisions, whereas others, notably in the field of fundamental rights and non contractual liability for damage, more or less surreptitiously raise the foreign law in transition critical of the decision.