FORTUITOUS CASE. - It is the occurrence of something unforeseen and unforeseeable by the acting subject. The notion of the fortuitous is negative: an event that does not find its cause in the will nor in any other known force; it thus expresses the shadow zone projected by our ignorance into the field of causality (F. Carnelutti, Teoria generale del reato, Padua 1933, p. 165).
The ecclesiastical legislator, following in this the Roman law (D. 19, 15, 2, 1), treats together in can. 2203 § 2 both the c. f. and force majeure, since in practice the one and the other resolve into the same effect.
Theoretically, however, the two concepts must be distinguished, because in the c. f. the lack of voluntariness is due to unforeseeability; in force majeure, on the other hand, it is due to the greater impetuosity of the thing "cui resisti non potest" (can. 103 § 1), that is, to the defect of freedom.
In the c. f. we speak of unforeseeability not in an absolute sense, but in a relative one, or rather of moral impossibility of foreseeing. Therefore, if despite ordinary diligence (whose omission constitutes juridical fault) and the common means, to be evaluated concretely, the effect follows unforeseen and therefore involuntary, we are still within the c. f.
Can we here speak of moral imputability or of juridical responsibility?
First of all it is necessary to distinguish between the moral order and the juridical order.
In the first, 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 second, that is, in the juridical order, the effect is often imputed when it could (or should) have been foreseen, although it was in no way foreseen. But even here there exists a profound differential note according to whether it is a question of c. f. in matters of obligations or in matters of crimes.
In matters of obligations, it is a general principle (with few exceptions) that, if through c. f. it has been impossible for the debtor to perform exactly the due prestation, he is not bound to compensate the damage deriving from non-performance or from delay (cf. art. 1218 of the Civil Code); indeed, if the c. f. renders the prestation impossible, in whole or in part, the obligation is extinguished correspondingly (arts. 1256-59). Special norms are laid down for the hypothesis in which the impossibility through c. f. arises when the debtor is already in default (art. 1221), and for some other particular hypothesis (cf. arts. 1780, 1784, 1805, 1806, 2037 of the Civil Code, art. 402 of the Code of Navigation, etc.). It is further to be noted that the debtor must compensate the damage deriving from c. f. when he has expressly assumed such an obligation (particular cases: arts. 1637 and 1648 Civil Code), which is valid also in conscience.
Similarly, if a fact, though objectively illicit, has been committed through c. f., that is, without either malice or fault, its author has no obligation to compensate the damage that the fact itself has caused to others (cf. art. 2043 of the Civil Code): but here the exceptions are more numerous, because positive law (which, if it is just, obliges also in conscience) often places upon a person, independently of his fault, the damage caused by those over whom he exercises some authority, or by the things of which he can dispose.
A particular example of responsibility despite the c. f. is found in canon law for the priest who has obligations of Masses "ex stipendio", even if this has perished in whole or in part without fault of his (can. 829), by the principle that "res perit domino". And this is valid also in conscience.
It is doubtful whether one is dealing with a matter of c. f. or rather of fault, when the c. f. derives in turn from a malicious or culpable activity (casus dolo seu culpa determinatus); but commonly this hypothesis is equated with that of fault, save for the exceptions expressly provided by law.
In criminal law the c. f. also exercises its efficacy as a cause eliminating the psychic element of the crime.
Canon law, like the legislations in force (cf. Italian Penal Code, art. 45), exempts from penalty criminal acts committed through c. f. (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 for a presumption of foreseeability in the hands of the judge.
If the c. f. derives from a culpable action, the culpable action is imputable in itself and by itself, never the unforeseen event that may follow from it. Likewise, the unforeseen event is not imputable which in an action, even a criminal one, occurs beyond the extent of the fault or of the malice. Thus it is in the external forum and also in the internal forum, if it is truly a question of the involuntary in itself and in its cause, or even of the voluntary in its cause, but without the foreseeing of the effect. But in the internal forum there can exist moral fault, even if the agent, though not foreseeing the effect, had it in his desire, or, once it occurred, approves it; although in such a case the sin remains internal (affectus non effectus) and the effect must be said in the first case to be willed, but not voluntary.
On the other hand it may also happen that the agent does not succeed in proving the fortuitous in the external forum, whereby he remains liable to penalty, while in the internal forum he is immune from fault.
Bibliography11 works
Pietro Palazzini-Pio Ciprotti