FORZA MAGGIORE (Vis maior, vis divina, causa cui resisti non potest). — When the agent is in such circumstances that he cannot prevent the event, or cannot save himself without infringing or allowing the infringement of another’s right, he is said to act under f. m. In cases of f. m., the agent’s right comes into collision with the right of an innocent person, and the collision is the effect of natural events or of third parties.
For responsibility to exist, a certain degree of freedom is, as a rule, a necessary presupposition; this in turn presupposes a choice, which is lacking in an action performed under f. m. The ecclesiastical legislator (can. 2203 § 2) and the Italian legislator (art. 45 of the Penal Code) treat fortuitous event (v.) and f. m. together; indeed, in the new Civil Code (arts. 1218, 1256), the Italian legislator sometimes resorts to a single formula referring to the absence of fault (“causa... non imputabile”) to indicate the two events.
Traditionally, in fact, fortuitous event and f. m. are jointly opposed to liability for fault, and some hold that the two expressions are synonymous and indicate the same phenomenon. In themselves, however, fortuitous event and f. m. are concepts which, in the judgment of most, should be kept distinct, although they share a common significance in their negative meaning of absence of freedom and irresistibility. Much has been discussed regarding precisely where the ratio distinctivis is to be located. Some seek it in the extraordinary nature of the phenomena, which would make the event in question foreseeable (fortuitous event) or unforeseeable (f. m.); others in the different origin of the phenomena determining the event, which may be natural (f. m.) or caused by the act of a third party (fortuitous event); others in unforeseeability or foreseeability combined with irresistibility, considering as f. m. the accidental event which, although foreseeable, allows neither time nor means to avoid the event, and as fortuitous event the event itself when unforeseen; others in the theory of knowledge, considering f. m. to be the movement of natural forces, and a fortuitous event that which derives from something that our experience cannot establish. For others, the same occurrence may be called a fortuitous event or f. m., depending on whether it is considered from the aspect of uncertainty regarding its occurrence or from the aspect of the action it exercises upon a person’s will. Both phenomena have a character of inevitability, but the fortuitous event derives this quality from the unforeseeability of the event, whereas f. m. derives it from its irresistibility.
It must nevertheless be acknowledged that the two terms have perfect ethical and juridical equivalence. Both are of interest to civil law insofar as they create a breach of obligation in which failure to observe a duty of diligence or violation of a right is found; they are of interest to the ethical sphere and to penal law insofar as they are causes that exclude the psychic element of sin and of wrongdoing: voluntariness.
For a more precise exemplification of the significance that events caused by f. m. have in the field of obligations and in Italian and canonical penal law, V. CASO FORTUITO. Everything stated there applies perfectly to the case of f. m.
e caso fortuito, in Nuovo Dig. Ital., VI, pp. 113–20 (with bibliography on p. 114); F. Roberti, De delictis et poenis, I, I, Rome n. d., pp. 95–97, nos. 68–69. And the bibliography of the entry CASO FOSTUITO.