'A CHI BRAGA EA should bear the costs What is a brag
An "sling" the fitting (manifold) between the drain and the toilet drain pipe, in the form of a "pipe" means that part vertical reach the floor and has a seal ring into which a discharge pressure of the toilet. while the horizontal, which is mounted at a slight slope toward the drain pipe, is connected to it by means of a joint.
the sling can also reach the discharge of wash basin, toilet and bidet. In this case it has multiple joints.
One case examined by the Supreme Court
Civil Cassation, Section II, Sept. 3, 2010, No 19045
President Dr. Roberto Michele Triola, Rapporteur Dr. Mazziotti Di Celso Lucio
In terms of building, according to art. 1117 cc, No 3, the drainage channels are subject to common ownership only to a point on branch plants to local property exclusive, and as the sling, as part of the junction of the horizontal piping pertaining to the single apartment and the vertical pipe, the relevance of home ownership, is structurally located in the branch, it may not fall within the condominium common property, which is why this is all 'use (and enjoyment) of all buildings, and in this case, the sling whatever the breaking point of the same, only serves to convey the relevance of the discharges of single apartment, unlike the vertical column, collecting the discharges of all the apartments, is the use of all buildings
OF THE PROCESS
BR and DG sued FN stating: that the apartment they owned had been affected by water seepage from pipes in the apartment above the plant owned by F. which was opposite to access their home for a plumber to carry out the necessary repairs, and that this had necessitated the use of a procedure under Article. 700 cpc, which ended with the decision which had been ordered to F. to provide for the immediate execution of the work needed to eliminate infiltration, that the work had been performed, it was possible to establish that the loss had arisen "in the sling graft of the sink of the column F. condominium." The plaintiffs then asked order the defendant to recover damages suffered as a result of infiltration. The
F., established, calling for the rejection of the application - supporting the unfounded - and, by way of counterclaim, the condemnation of the players to recover damages suffered resulting from their illegal conduct. With the rise 01/21/2003
ruling upheld the Court of Cremona main question - and ordered the defendant to pay the actors Euro 971.31 in compensation for damages - and dismissed the appeal.
against that ruling F. appealed to which resisted the B. and D.. 04/19/2005
With the ruling of the Court of Appeal dismissed the appeal noting Brescia: the loss of water infiltrated into the ceiling of the apartment below was determined by breaking the exhaust tract oblique created to channel water from the sink F. column condominium;
that the distinction made by the appellant, including section proprietary and stretch consists of a special element forming one with the vertical column of condominium property, is not reflected on the technical and contrasted with the definition commonly given the "sling" in question, then the court had correctly stated the membership of the section of pipe in question in the exclusive property F. and had identified the existence of liability on the part of the same things for custody under Article 2051 Civil Code, which proof that the damage suffered by the respondents from the findings made by the surveyor P. - 21/10/1999 transfused in the report - and the photographic experience, not only by oral testimony;, as is clear from these evidentiary findings, the ceilings and walls of the toilet and on the hallway of the apartment the couple B. - D. were interested to notice traces of seeping water, which, contrary to the contention of the appellant, the building did not bear the cost of expenditure required to restore the apartment by the respondents, that the amount of damages in Euro 800 , 00, principal, despite being larger than indicated by the surveyor P. in L. 1350.000, was justified by several factors (listed in detail), which was rightly rejected the counterclaim brought by F. given the observed legal legitimacy of the initiative taken by these spouses.
of the Supreme Court of Appeal of Brescia has been requested by FN with action given four reasons. RB and DG have resisted defense.
GROUNDS
The first ground of appeal, F. complaint breach of Article. 1117 cc, No 3, arguing that - as stated in the same sentence appeal - the breaking point of the drain pipe has been identified in the oblique section which carries the waters of the basin property it to the applicant column pool. Water loss is therefore to be ascribed to the rupture of a common element of the building. In fact, the 'brag engagement "between the pool and the drain pipe of a single user exclusive condominium is a unique body with the condominium column and is an exclusive property of the condominium. The Court of Appeal was therefore wrong in its interpretation of Art. 1117 cc, No 3.
The second reason the applicant alleges infringement of Article. 2051 cc, arguing that the strict liability for damage caused by the thing in custody derives its justification to the existence of an actual physical power of the subject asset. In this case it F. never had a power of intervention on the part of the pipe in question is a piece to be considered one with the sling condominium. In fact, it was necessary to intervene a communal act. Responsibility art. 2051 cc, it must be attributed only to the condominium. The third reason
F. complaint for failure to state reasons, the appeals court failed to consider a crucial fact, namely that part of the pipe that caused the damage as a single block which forms the vertical column of condominium property as evidenced by documentation. The appellate court failed to consider certain evidence such as expertise of the surveyor Bo. and surveyor P. and minutes of meeting of the condominium 23/11/1999 and 25/1/2000.
The Court finds no grounds for those complaints which, for obvious reasons of economy and logical reasoning, may be considered together because of their close connection and interdependence concern all - some more, some less, albeit under different aspects and Profiles -the same issue of the Monthly or less of the "sling" of the drain pipe from which are derived from the infiltration of water in the apartment of Mr and Mrs B. - D..
It should be noted that the reply given by the court of appeal to this question is faultless and complies with the principle that this Court has ruled - and that the Board agrees with and adopts - that:
- under the ' art. 1117 c.c., n. 3, i canali di scarico sono oggetto di proprietà comune solo fino a punto di diramazione degli impianti ai locali di proprietà esclusiva, e poichè la braga, quale elemento di raccordo fra la tubatura orizzontale di pertinenza del singolo appartamento e la tubatura verticale, di pertinenza condominiale, è strutturalmente posta nella diramazione, essa non può rientrare nella proprietà comune condominiale, che è tale perchè serve all'uso (ed al godimento) di tutti i condomini; e, nella specie, la braga qualunque sia il punto di rottura della stessa, serve soltanto a convogliare gli scarichi di pertinenza de singolo appartamento, a differenza della colonna verticale che, raccogliendo gli scarichi, di tutti apartments, is the use of all buildings (Case No. 5792 March 17, 2005);
- a building in the presumption of ownership, as provided by art. 1117 cc, No 3, including the installation of waste water, operates with reference to the facility which collects the water from the complex, and, therefore, that has the ability to use and enjoyment of the collective, with the exception of pipelines ( including connections) that branch out from that column condominium exhaust, are the exclusive property of an apartment (Case No 583 01/01/2001, 10/08/1998, No. 9940, regarding the heating system).
- the expenditure for repair of the drainage channels of the building in condominio, che, ai sensi dell'art. 1117 c.c., n. 3, sono oggetto di proprietà comune fino al punto di diramazione degli impianti ai locali di proprietà esclusiva dei singoli, sono a carico di tutti i condomini per la parte relativa alla colonna verticale di scarico ed a carico dei rispettivi proprietari per la parte relativa alle tubazioni che si diramano verso i singoli appartamenti (sentenza 18/12/1995 n. 12894).
Avuto riguardo ai principi esposti la sentenza impugnata non è incorsa in alcuna violazione di legge e si sottrae alle critiche di cui è stata oggetto con le censure in esame posto che - come ammesso dalla stessa ricorrente - il punto di rottura della tubazione di scarico è stato individuato nel tratto obliquo che convoglia the waters of the basin owned by F. column pool. Just goes
added - referring to the alleged violation of Article. 2051 cc, reported the second ground of appeal - that the said rule is a form of responsibility that has legal basis in the fact that the person held liable is in a relationship with the thing eminently qualified, meaning de facto relationship or relationship physics involving the actual availability of same, from whom the power - and duty to preserve it to ensure, that does not cause harm to others. The case in art. 2051 cc, find a hypothesis of strict liability and not a presumption of guilt, but rather the for the application of the same report the fact of custody between the controller and the thing that gave rise to the event detrimental regardless of actual or potential hazard of the thing itself, and, therefore, is applicable even in (the applicant in this case ) of inert things. Therefore, why can configure itself in real liability for damage caused by things in case it is sufficient that there is a causal link between the thing in custody and the damage caused, irrespective of whether the conduct in this respect and observance of the caretaker or not a duty of supervision, since the concept of custody does not necessarily mean or imply an obligation to guard similar to that provided to the depositary. It follows that the defendant guardian and the duty to offer evidence to the contrary to the rebuttable presumption of liability by demonstrating positive (in this case does not offer) of the accident, namely the fact outside his sphere of housing, with autonomous causal impulse and unpredictability of nature and an exceptional measure. In the event of persistent uncertainty on the identification of the specific cause of damage remains with the custodian of the fact unknown, because not adequate to remove the doubt as to the conduct causative of the event.
The court on which it has interpreted the provision in question, has not committed any violation of law.
Finally found the inadmissibility of the criticisms here (with the third ground of appeal) concerning the alleged omitted (or wrong) examination of documentary evidence obtained (Bo expertise of the surveyor. P. and surveyor, as well as Minutes of the meeting of the condominium 23/11/1999 and 25/01/2000).
These criticisms are not worthy of approval, in addition to their obvious impact in the area of \u200b\u200bpraise reserved for the trial judge, even for their generality.
In the latter respect it is worth mentioning that the applicant alleges that the erroneous interpretation and evaluation of documentary evidence indicated without reporting the specific content and that does not allow the complete reconstruction - the light only some isolated parts - the overall meaning and main points and important. This prevents this Court to determine - solely on account of deductions contained in the action - the impact of the reported lack of causal reasoning and the decisiveness of observations on this point raised by the applicant.
in proceedings concerning the applicant submits that the failure or the incorrect evaluation of the results of the investigation has the burden (for the principle of self-sufficiency of the appeal), specify the content of tests not taken, including reasons for character critical assessment of the alleged defect: this burden was not met in this case.
noted that the applicant, with a thesis on gli errori che sarebbero stati commessi dal Giudice di appello nel ricostruire i fatti di causa in relazione alle risultanze probatorie, ha sostanzialmente inteso sostenere che l'impugnata sentenza sarebbe basata su elementi di fatto inesistenti o contrastanti con le risultanze istruttorie. Trattasi all'evidenza della denuncia di travisamento dei fatti contro cui è esperibile solo il rimedio della revocazione. Secondo il consolidato orientamento giurisprudenziale di questa Corte, la denuncia di un travisamento di fatto, quando attiene (come nella specie) al fatto che sarebbe stato affermato in contrasto con la prova acquisita, costituisce motivo di revocazione e non di ricorso per cassazione importando essa un accertamento di merito non consentito in sede di legittimità.
The fourth reason, the applicant alleges violation of Articles. 2697, 2056 and 1223 cc, as well as defects of reasoning, arguing that the appeals court did not correctly apply the rules relating to contractual damages and the burden of proof borne by the injured party. The court took the view on sufficient evidence of the damage whereas "likely" the extent of the damages even further and do not try painting of the building costs of the spouses B.. The damages recoverable are only those directly and immediately resulting from the failure. The danneggiale must also respond only of the likely consequences of his conduct and not those remote, improbable or losses, depend on its function. In this case the alleged damage to the painting on the ceiling was not supported by any evidence. In this respect the appellate court held that damage for which compensation purely hypothetical and plausible. In addition, the grounds of the appeal is contradictory in that he took note of the deliberations. condominium January 15, 2002, by which were divided between the condominiums expenses related to research and repair of hydraulic failure.
This plea, like any other, is unfounded since, contrary to what the applicant and as repeatedly stated in the case of legitimacy regarding the extent of damages derived from tort law, the requirement of foreseeability of harm, the mental element of it (art. 1225 cc), is inapplicable to non-contractual liability, as they called art. 2056 cc, the legislature had chosen not to proportion the damages to the degree of fault (Case No. 6725 3/30/2005). Therefore, also in relation to causality in the omission regarding the fraud tort, shall continue to apply the principle that, not having the art. 2056 cc, which is called art. 1225 cc, damages are recoverable is foreseeable that unpredictable, since those particular note in terms of legal causation in art. 1223 cc, and not on the della causalità materiale di cui agli artt. 40 e 41 c.p. (sentenza 31/5/2005 n. 11609).
Correttamente, quindi la corte di appello ha ritenuto - confermando la decisione del primo giudice - di dover aggiungere, all'importo indicato dal geometra P. per la quantificazione dei danni subiti dai coniugi B., una somma (peraltro molto contenuta) per il "verosimile" ulteriore danno al soffitto del locale soggiorno. In proposito la corte di merito ha ampiamente giustificato tale decisione facendo espresso riferimento: alla limitala valutazione operata dal professionista relativa solo alle spese di ripritino e tinteggiatura del soffitto del bagno; all'estensione del fenomeno dannoso anche al soffitto locale soggiorno; al perdurare della causa dell'inconveniente even after the visit of the trader.
It is, as seems obvious, the reasons are adequate and appropriate, the result of a final assessment of the evidence and arguments supported by consistent immune defects logical and legal.
The appeal must therefore be dismissed by order the applicant to pay the costs of the proceedings of Cassation dismissed the extent indicated in the device. PQM
the Court rejects the appeal and order the applicant to pay the costs of the proceedings of cassation that liquid in a total of € 200.00, more than € 600.00 in respect of fees and accessories as well as by law.
