CASO FORTUITO. — It is the occurrence of something unforeseen and unforeseeable by the acting subject. The notion of fortuity is negative: an event that finds its cause neither in the will nor in any other known force; it thus expresses the zone of shadow cast by our ignorance over the field of causality (F. Carnelutti, Teoria generale del reato, Padua 1933, p. 165).
The ecclesiastical legislator, following Roman law in this respect (D. 19, 15, 2, 1), treats both the caso fortuito and force majeure together in can. 2203 § 2, since in practice each produces the same effect.
Theoretically, however, the two concepts must be distinguished, because in the caso fortuito the lack of voluntariness is due to unforeseeability; in force majeure, on the other hand, it is due to the greater impetus of the thing «cui resisti non potest» (can. 103 § 1), that is, to the absence of freedom.
In the caso fortuito, we speak of unforeseeability not in an absolute but in a relative sense, or rather of the moral impossibility of foreseeing. Therefore, if, despite ordinary diligence (the omission of which constitutes legal fault) and ordinary means, to be assessed in the concrete case, the effect occurs unforeseen and therefore involuntary, we are still dealing with a caso fortuito.
Can one speak here of moral imputability or legal responsibility?
First of all, a distinction must be made between the moral order and the legal order.
In the former, the effect of our actions and omissions is not imputable when the agent has not in fact foreseen the effect, not even confusedly; in the latter, that is, in the legal order, the effect is often imputed when it could (or should) have been foreseen, although it was not foreseen in any way. But here too there is a profound difference according as the caso fortuito concerns obligations or offenses.
In matters of obligations, it is a general principle (with few exceptions) that, if by reason of a caso fortuito it has been impossible for the debtor to perform exactly the prestation owed, he is not required to compensate the damage resulting from non-performance or delay (cf. art. 1218 of the Civil Code); indeed, if the caso fortuito renders performance impossible, wholly or in part, the obligation is correspondingly extinguished (arts. 1256–59). Special rules are laid down for the case in which impossibility due to a caso fortuito arises when the debtor is already in default (art. 1221), and for certain other particular cases (cf. arts. 1780, 1784, 1805, 1806, 2037 of the Civil Code, art. 402 of the Navigation Code, etc.). It should also be noted that the debtor must compensate the damage resulting from a caso fortuito when he has expressly assumed such an obligation (particular cases: arts. 1637 and 1648 of the Civil Code), an obligation that is also valid in conscience.
Similarly, if an act, although objectively unlawful, was committed by caso fortuito, that is, without either intent or fault, its author has no obligation to compensate the damage that the act itself caused to others (cf. art. 2043 of the Civil Code). Here, however, the exceptions are more numerous, because positive law (which, if just, is also binding in conscience) often places upon a person, independently of his fault, responsibility for damage caused by those over whom he exercises some authority, or by things over which he has control.
A particular example of responsibility notwithstanding a caso fortuito is found in canon law in the case of a priest who has obligations of Masses « ex stipendio », even if the stipend has perished wholly or in part through no fault of his (can. 829), in accordance with the principle that « res perit domino ». This also applies in conscience.
It is doubtful whether one is dealing with a caso fortuito or instead with fault when the caso fortuito itself derives from an intentional or negligent activity (casus dolo seu culpa determinatus); but this hypothesis is commonly equated with that of fault, except for the exceptions expressly provided by law.
In criminal law, the caso fortuito also operates as a cause eliminating the psychic element of the offense.
Canon law, like the legislation in force (cf. Italian Penal Code, art. 45), exempts from punishment criminal acts committed by caso fortuito (can. 2203 § 2). The reason is simple: « nulla poena sine culpa ».
And the ancient distinction between « versantem in re licita vel illicita », to which canonists and moralists adhered for a long time, no longer has any reason to exist, except as a presumption of foreseeability available to the judge.
If the caso fortuito derives from a negligent action, the negligent action itself is imputable, and only that action, never the unforeseen event that may follow from II. Likewise, the unforeseen event that occurs in an action, even if criminal, beyond the extent of the fault or intent is not imputable. This is so in the external forum and also in the internal forum, if it truly concerns something involuntary in itself and in its cause, or even voluntary in its cause but without foreseeing the effect. In the internal forum, however, moral fault may exist even if the agent, while not foreseeing the effect, desired it or, once it had occurred, approved it; although in this case the sin remains internal (affectus non effectus), and the effect must be called, in the first case, willed but not voluntary.
On the other hand, it may also happen that the agent is unable to prove the fortuity in the external forum, and therefore remains liable to punishment, while in the internal forum he is free from fault.
Pietro Palazzini-Pio Ciprotti