FORCE MAJEURE (Vis Maior, Vis Divina, Cause to Which Resistance Is Not Possible). - When an agent is in such conditions that he cannot prevent the event, or cannot save himself without offending or allowing another's right to be offended, he is said to act by f. m. In cases of f. m. the agent's right finds itself in collision with the right of an innocent person, and the collision is the effect of natural events or of third parties.
For there to be responsibility, a certain freedom is, as a rule, a necessary precondition, and this in turn presupposes a choice, which is lacking in the case of an action performed by f. m. The ecclesiastical legislator (can. 2203 § 2) and the Italian legislator (art. 45 of the Penal Code) treat together both of fortuitous event (v.) and of f. m.; indeed the Italian legislator in the new Civil Code (arts. 1218, 1256) at times has recourse to a single formula, which refers to the absence of fault ("causa... non imputabile"), to indicate the two events.
In fact, by tradition fortuitous event and f. m. are together opposed to responsibility for fault, and there is no lack of those who consider the two expressions synonyms, indicating the same phenomenon. But in themselves fortuitous event and f. m. are concepts which, in the judgment of most, should be kept distinct, although they have a common relevance for their negative meaning of absence of freedom and of irresistibility. There has been much discussion as to precisely what the ratio distinctiva is to be located in, some seeking it in the foreseeability of the phenomena, which would make the lamented event foreseeable (fortuitous event) or not (f. m.); others in the different origin of the phenomena determining the event, which may be natural (f. m.) or brought about by the act of a third party (fortuitous event); others in unforeseeability or foreseeability combined with irresistibility, holding f. m. to be the accidental event which, although foreseeable, gives neither time nor means to avoid the event, and fortuitous event the unforeseen event itself; others in the theory of knowledge, holding f. m. to be the movement of natural forces, and fortuitous event that deriving from something which our experience cannot establish. For others the same occurrence can be called fortuitous event or f. m., according as it is considered from the aspect of the uncertainty of its adversary or from the aspect of the action it exercises on a person's will. Both phenomena have a character of inevitability, but the fortuitous event derives this fact from the unforeseeability of the event, whereas f. m. derives it from its irresistibility.
It must be agreed, however, that the two terms have perfect ethical and juridical equivalence. Both of them concern civil law insofar as they create a non-performance, in which one finds the non-observance of a duty of diligence or the violation of a right; they concern the ethical field and criminal law insofar as they are causes which exclude the psychic element of sin and of the offense: voluntariness.
For a more precise exemplification of the consideration that events caused by f. m. have in the field of obligations and of canonical and Italian criminal law, v. CASO FORTUITO. What is said there applies perfectly to the case of f. m.