La questione dell'onere

Caredda, Valeria

2024-01-01

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Abstract

The title 'the question of burden' alludes to the existence of long-standing doubts and problems, perhaps somewhat neglected, at least on the surface, but worthy of consideration. A renewed interest in the controversial figure of the burden provides a lens through which to observe human behaviour and its legal qualification. The investigation passes through the examination of the more traditional theoretical premises, of the holding of entrenched opinions (many of which are not solidly grounded), but also and above all through the valorisation of aspects that are surprisingly consistent with lines of development of the law that are typical of the present day. Observations on soft law, without sanction, flexible and ill-defined, go in this direction, among others. Among the application profiles of the figure in question, the one that comes to the fore is that of the applicable discipline where, despite the paucity of available data, non-negligible aspects emerge that demonstrate the importance of the correct qualification of the conduct: at this stage, it is appropriate to draw the line between disciplines applicable to conduct differently qualified, such as burden and duty. The investigation then focuses on the relationship between burden and private autonomy and on the question of whether and, if so, within what limits burdens of a negotiated nature are permissible.