�Cuius commoda, eius et incommoda�: l?art. 2049 del codice civile nella gig economy
Creators: name: Pilzer, Lara
Publisher: name: Universit� degli Studi di Trento. Facolt� di Giurisprudenza
Year: 2021

description: This paper demonstrates the soundness of the principle "cuius commoda, eius et incommoda", which has crossed centuries and three industrial revolutions, and is about to brilliantly overcome the fourth one, the one of digital platforms. In the first part, the aim is first of all to highlight how, in the various historical contexts, the interpretation of the liability for the fact of the principal has always been conditioned by the contingent social and economic situation. In particular, one finds, both in Roman law and during the era of the industrial revolutions, a certain tension between subjective and objective criteria of imputation of the principal's liability, until the rule was established in the great liberal codifications of the nineteenth century. Moreover, the vague and anachronistic terms in which the principal's liability rule is set out in the codified formulations have never prevented doctrine and jurisprudence from going beyond mere literal data to identify the underlying ratio of the rule. Article 2049 of the Italian Civil Code has thus ended up satisfying a twofold need: to ensure that the injured party is compensated and to encourage the containment of the risk that inevitably derives from the exercise of any organised activity. These are aims that Mr. Pietro Trimarchi laid bare in the post-war, which can only be pursued through a prudent substantial approach to economic phenomena. The true principal of the activity is, in fact, only that subject who concretely governs the general conditions of the risk connected with his activity and who can make this risk a cost element, useful for assessing the economic convenience of the activity itself. Similarly, the relationship of preposition, which does not coincide with the employment relationship, is that which is characterised first of all by the inclusion of the employee in the business organisation of the principal. In the second part, the relevance of the principle cuius commodum is discussed, analysing the functioning of digital platforms of work on demand, as well as the reason why the latter, far from being mere intermediaries of a service offered by third parties, must be considered the real subjects that create, coordinate and control the main activity, which is the one rendered in the real world and in whose organisation a crowd of variously qualified workers is inserted. This deepens the reasons that lead to affirm the liability of digital platforms under Article 2049 of the Civil Code for damages caused by gig workers, in the performance of tasks received through apps. And this is the case regardless of the formal qualification given by the platforms to the relationship with their collaborators and, even, of that otherwise ascertained by the judge at the outcome of a possible judgement, because in the face of the current forms of organisation of economic activities - thought inevitably runs to the phenomenon of outsourcing - the liable party must be identified using substantial criteria that look at the concrete organisational and economic powers that guide the performance of the activity.