Liability for negligently issued anti-mafia certificates

Abstract

Purpose This paper aims to analyse the different forms of liability that might apply under Italian private law to anti-mafia advisors who negligently perform their duties, with particular regards to auditors concerning the drafting of mandatory anti-mafia certificates as bidding documents for public procurement contracts. Design/methodology/approach The analysis is based on the comparative law methodology of dissociation of “legal formants”, that is, on the study of separate contributions by each element of the legal system – from black-letter provisions to judicial dicta, from scholars’ arguments to administrative practices – to the making of legal rules in a given setting. Findings Neither case law nor academic writing is abundant on this topic. Yet, it can be fairly assumed that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious liability. Originality/value The paper investigates an area, which has so far been largely unexplored, and, thus, contributes to paving the way for a better understanding of the legal framework applicable to the cases under examination.