Statement is shared that qualified professional who releases incorrect economic information are liable for damages suffered by third parties that have relied upon it. This formula is an attempt of doctrine and jurisprudence to ensure proper markets operating giving a rationale to investor confidence through a mechanism to award damages occurred as a result of an inaccurate information or assessments. A more careful analysis however, highlights how, in practice, the principle melts uncertainty for two main and concurrent reasons: a) the attempt to build a unique rule applicable to the entire area of qualified operators assessment or information, forcing the interpreter to an excessive level of abstraction that leads to general statements and a general flattening of situations actually different b) the tension to an actual protection of those who, in good faith, relied on those assumptions or information leads to a simplification of the burden of the proof, with unfulfilling solutions. The use of the res ipsa loquitur theory realizes in fact a kind of «short circuit» in the system of civil liability, whereby the evidence of the incorrect information and the damages relieves the actor from the burden of proving negligence, causation and the amount of damage. This, from an operational point of view, means to connect the advisor liability to the "position" that it assume in the transaction. This method does not distinguish between deserving and negligent operators, increasing the risk of a deterioration in the quality performance of the advisor and of an uncontrolled and arbitrary litigation with a worsening of the system overall efficiency. Hence, a rethinking of the entire matter in a partially different perspective, taking into account: the specificity of each 'type' advisor and duties imposed on it in relation to the specific sector they belong; the actual knowledge and competence of the parties and their concrete interests; the demand of a liability rule that ensure equal conditions to any kind of investor avoiding arbitrary decisions that are not based on controlled and reproducible criteria.

La responsabilità dell'Advisor - III ed.

NUZZO, Matteo
2013

Abstract

Statement is shared that qualified professional who releases incorrect economic information are liable for damages suffered by third parties that have relied upon it. This formula is an attempt of doctrine and jurisprudence to ensure proper markets operating giving a rationale to investor confidence through a mechanism to award damages occurred as a result of an inaccurate information or assessments. A more careful analysis however, highlights how, in practice, the principle melts uncertainty for two main and concurrent reasons: a) the attempt to build a unique rule applicable to the entire area of qualified operators assessment or information, forcing the interpreter to an excessive level of abstraction that leads to general statements and a general flattening of situations actually different b) the tension to an actual protection of those who, in good faith, relied on those assumptions or information leads to a simplification of the burden of the proof, with unfulfilling solutions. The use of the res ipsa loquitur theory realizes in fact a kind of «short circuit» in the system of civil liability, whereby the evidence of the incorrect information and the damages relieves the actor from the burden of proving negligence, causation and the amount of damage. This, from an operational point of view, means to connect the advisor liability to the "position" that it assume in the transaction. This method does not distinguish between deserving and negligent operators, increasing the risk of a deterioration in the quality performance of the advisor and of an uncontrolled and arbitrary litigation with a worsening of the system overall efficiency. Hence, a rethinking of the entire matter in a partially different perspective, taking into account: the specificity of each 'type' advisor and duties imposed on it in relation to the specific sector they belong; the actual knowledge and competence of the parties and their concrete interests; the demand of a liability rule that ensure equal conditions to any kind of investor avoiding arbitrary decisions that are not based on controlled and reproducible criteria.
978-88-495-2743-8
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11367/28197
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