Specific compensation
The specific compensation for damages consists of total removal of the situation detrimental to the rights of others through the “restitutio in integrum”, and not simply in the removal of the fact that caused the damage. Compensation in a specific form is expressly dealt with byart. 2058 cc in whose mind it is the injured party who can request reinstatement in a specific formwhen this is entirely or partially possible.
The right to obtain compensation in a specific formHowever, it is not absolute. The second paragraph of the art. 2058 of the Civil Code, in fact, specifies that if reinstatement in a specific form is excessively onerous for the debtor, then the judge would have the power to order reinstatement by equivalent (i.e. through the payment of a sum of money).
Furthermore, compensation in a specific form tends to create a broader and, as a rule, more onerous form for the debtor, of compensation for the damage caused by him, given that the object of the claim is not constituted by a sum of money, but from the achievement, by the damaged creditor, of a completely similar performancein its specificity and integrity, to that to which the debtor was obliged based on the contractual obligation.
Condominium and specific compensation: practical examples
The owner of the bathroom whose ceiling is dripping water can ask, as well as the removal of the cause of the damagealso the arrangement of its compartment affected by the infiltration phenomenonthat is, asking the injurer to take steps to find a company and have it intervene at your own expense.
Likewise, once the responsibility of the condominium and recognized the validity of the request for specific execution pursuant to art. 2058 cc for execution of works aimed at interrupting and defining the causes of leachations, the logical consequence is the condemnation of the condominium to pay for the interventions necessary to restore the garage, ruined by infiltrations. In particular whoever is damaged is a creditor and, therefore, chooses how to obtain fulfillment of the compensation obligation by the debtor/injurer.
The condominium owner’s request aimed at condemning the defendant to carry out the works necessary to eliminate the cause of the damage and its consequences integrates aspecific compensation actionwhich, representing a method of reinstatement of the injured party’s interest through a different performance, is distinguished both from the action of fulfillment (which presupposes the existence of an unfulfilled or incorrectly fulfilled obligatory relationship, and allows obtaining a conviction of the debtor to the execution of the same service which was the object of the same), and from the specific execution of an obligation to do (Civil Cassation, section III, 27/11/2023, n.32898).
Recently, a judge of merit dealt with a matter that began when the owner of a property located inside a condominium brought an action for feared damage and specific compensation, given the infiltrations suffered, over the years, on the ceiling of the balcony and on that of the veranda, pertaining to one’s own housing unit, with a request for condemnation of the condominium and the owner of the balcony above to carry out the works indicated in the technical report filed following the advanced and concluded preventive technical assessment procedure. The expert witness identified the necessary works, in detail, foreseeing both the type and method of intervention, as well as the costs, together with the works for restoring the plaintiff’s premises affected by the infiltrations to pristine condition. Consequently, the Judge endorsed the findings of the expert witness, accepting the request made by the actress (specific compensation for damages), ordering the defendants to carry out the works indicated in the report, with a joint and several sentence of repayment, in favor of the actress , of the fees and litigation costs paid (Trib. Rome 30 July 2024 n. 12765).
In any case, as mentioned, it is quite clear how the person who caused the damage (condominium or condominium) cannot impose the specific way of fulfilling the reimbursement of the damage to the injured party.
