Abstract

The commentary investigates the regime of exceptions enforceable by the (allegedly) liable third party against the insurer acting in recourse against him, pursuant to Article 1916 of the Civil Code, following the payment in favor of the injured/insured party of insurance compensation. Starting from the framing of the recoupment action under Article 1916 Civil Code in the figure of legal subrogation, the author comes to the conclusion, in line with the traditional view, that the liable third party can formulate to the insurance company all the exceptions inherent in the obligatory compensatory relationship that it could have asserted against the insured/damaged party. On the other hand, the author questions the traditional orientation, insofar as it excludes at root the possibility for the damaging third party to raise exceptions inherent to the content of the insurance relationship (i.e., the possibility for the third party to challenge the insurer for having «paid» the insured poorly), pointing out how it is possible to argue the opposite solution, considering as a prerequisite for the emergence of the subrogation phenomenon, not the mere payment of compensation by the insurer, but the legitimacy of the payment of the same.