Practical guide
How to draft a writ of summons for damage caused by things in custody with AI
5 min read · Updated July 2026 · Editorial oversight: Avv. Federico Papa
A writ of summons for damage caused by things in custody, based on Article 2051 of the Civil Code, is the procedural tool used to enforce the custodian's strict liability for damages caused by the thing itself. This action differs from the general regime of Article 2043 c.c. as it establishes a presumption of liability against whoever holds physical and legal power over the object (the res), regardless of fault and allowing only a fortuitous event (caso fortuito) as an exculpatory defense. The purpose of the summons is to initiate ordinary proceedings where the plaintiff must prove the causal link between the thing and the harmful event, seeking compensation for both pecuniary and non-pecuniary damages under Article 2059 c.c.
In brief
The writ of summons under Art. 2051 c.c. invokes the strict liability of the custodian for damages caused by the thing. The plaintiff must prove the causal link, while the defendant bears the burden of proving a fortuitous event. Following the Cartabia Reform, the summons requires mandatory warnings under Art. 163 c.p.c. and a 120-day notice period per Art. 163-bis c.p.c. The procedure involves judicial checks under Art. 171-bis c.p.c. and supplementary briefs per Art. 171-ter c.p.c. AI tools support the technical drafting of the legal document.
The steps
- 1.
Identification of the competent court and parties
The first phase consists of identifying the Court or Justice of the Peace with jurisdiction based on value and territory, according to the general rules of civil procedure applicable to tort claims. It is necessary to precisely identify the plaintiff and the defendant, the latter being the person who exercised effective custodial power over the thing at the time of the accident, whether as owner, manager, or user. Correct identification of the custodian is an essential prerequisite for passive standing (legittimazione passiva) to avoid preliminary objections that could stall the action.
- 2.
Statement of facts and causal link
The plaintiff must meticulously describe the dynamics of the accident, specifying the state of the premises and the characteristics of the object that caused the damage. It is essential to highlight the causal link between the thing in custody and the harmful event, demonstrating that the damage resulted from the intrinsic dynamism of the res or from a defect therein. The narrative must be supported by references to photographic evidence, expert reports, or official authority reports to make the reconstruction solid and resilient during the merits phase.
- 3.
Legal characterization and burden of proof
In the legal section, the summons must explicitly reference Article 2051 c.c., emphasizing the strict nature of the liability, which operates independently of any assessment of fault by the custodian. It must be clarified that the plaintiff bears only the burden of proving the causal link between the object and the damage, while the defendant must provide exculpatory evidence (prova liberatoria) of a fortuitous event (caso fortuito), which includes third-party acts or the victim's exclusive negligence. This legal framework conditions the entire trial and the distribution of evidentiary duties between the parties.
- 4.
Inclusion of warnings under Art. 163 c.p.c.
Under penalty of nullity, the summons must contain the warnings required by Article 163, paragraph 3, no. 7 c.p.c., updated according to the Cartabia Reform, informing the defendant that appearance in court must occur at least 70 days before the scheduled hearing. It must also warn that appearing after said deadline results in the forfeitures provided for under Articles 38 and 167 c.p.c., that representation by legal counsel is mandatory except where otherwise provided by law, and that the party may apply for legal aid (patrocinio a spese dello Stato) if legal requirements are met. Finally, the summons must specify that, failing appearance, proceedings will continue in default (contumacia).
- 5.
Setting the hearing and appearance terms
The plaintiff must summon the defendant to appear at a fixed hearing, observing the requirement of 120 clear days between the service of the summons and the hearing date, as established by Article 163-bis c.p.c. This term is essential to allow the defendant to prepare their defense and to enable the judge to carry out the preliminary checks under Article 171-bis c.p.c. Failure to observe the 120-day notice period results in the nullity of the summons; however, if the defendant appears and raises an objection regarding non-compliance with the terms, the judge is required to fix a new hearing date in compliance with statutory terms.
- 6.
Formulation of prayers for relief and evidentiary requests
The prayers for relief (conclusioni) must contain the request for a declaration of the defendant's liability and the consequent order for payment of damages, explicitly quantified or to be determined during trial. On evidentiary grounds, counsel must formulate the witness examination points and request the appointment of a court-appointed expert (CTU). These requests precede the judge's preliminary checks under Art. 171-bis c.p.c. regarding the regularity of the proceedings, while the definitive boundaries of the dispute and final evidentiary requests will be defined in the supplementary briefs under Art. 171-ter c.p.c.
Legal basis: art. 2051 c.c.art. 2059 c.c.art. 163 c.p.c.art. 163-bis c.p.c.art. 171-bis c.p.c.
The template structure
The standard sections that make up the document. The full template can be opened and completed directly on edit.legal.
Competent Court
Indication of the judicial authority with jurisdiction based on value and territory according to the rules of civil procedure.
Parties
Complete identification of the injured plaintiff and the defendant custodian, whether a natural person or a legal entity.
Facts
Detailed description of the object, the custodial relationship, the harmful event, and the causal link.
Legal Grounds
Analysis of strict liability under Art. 2051 c.c. based on the strict liability regime of the custodian and the exculpatory burden of proving a 'caso fortuito'.
Prayers for Relief
Final requests for an order for damages, economic quantification, statutory interest, and legal cost reimbursement.
Evidentiary Requests
Requests for testimonial evidence, photographic documentation, and the appointment of an expert witness (CTU) to assess the premises and quantify damages.
Place, Date, Signature and Power of Attorney
Formal closing elements of the deed, including counsel's signature, power of attorney, and the list of attached documents.
Mistakes to avoid
- Omission of the mandatory new warnings under Art. 163, paragraph 3, no. 7 c.p.c. regarding the 70-day filing deadline, resulting in the nullity of the summons.
- Incorrect application of the notice period for appearance, granting 90 days instead of the 120 clear days mandated by Art. 163-bis c.p.c.
- Failure to allege or prove actual custodial control held by the defendant, leading to dismissal for lack of passive standing.
- Failure to conduct mandatory out-of-court dispute resolution procedures (such as mandatory mediation or assisted negotiation) required as a condition of admissibility.
Frequently asked questions
What are the filing deadlines for the plaintiff after the Cartabia Reform?
The plaintiff must enter the case on the court docket within 10 days of service of the summons. The plaintiff's failure to enter an appearance within the deadline does not automatically terminate the proceedings if the defendant timely enters an appearance, pursuant to Articles 171 and 290 c.p.c.
What is meant by 'caso fortuito' under Art. 2051 c.c.?
The 'caso fortuito' is an unforeseeable, exceptional, and unavoidable event capable of breaking the causal nexus between the object and the damage. It may consist of an extraordinary natural occurrence, an act of a third party, or the negligent conduct of the victim itself, provided it has autonomous causal force.
What happens if the hearing date specified in the summons falls on a public holiday?
Under Art. 168-bis, paragraph 4 c.p.c., if the day designated for the hearing is not a day on which the appointed judge holds hearings, the appearance is automatically deferred to the judge's next available hearing day.
What edit.legal automates
- —Automatic generation of clauses updated to the Cartabia Reform, including the new warnings under Art. 163, paragraph 3, no. 7 c.p.c.
- —Automated calculation of the 120-day notice period for appearance and the 70-day filing deadline for the defendant.
- —AI-assisted drafting of expert witness questions (CTU) and witness examination points based on the specific dynamics of the custody damage.
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