INCOMODO. — I. (from the Latin incommodum, that is, discomfort, disturbance, harm) denotes in moral theology and law that particular difficulty or specific danger accidentally joined to the observance of a law, by reason of which one may be considered exempt from observing II.
For this, it is required: 1) that the particular situation of difficulty or danger present a pronounced character
of gravity: that is, that the reason for violating the law be sufficiently serious in relation to the person’s status and to the circumstances of time or place, such as, for example, the necessity of an extraordinary effort, the imminence of serious harm or the fear of incurring it, or the consequent loss of some good that is of particular concern to the person subject to the law;
2) that the law in question be no more than a human law; no human law, therefore, can bind by itself when there is danger to life or an i. of a similar nature for those who must observe II. Suarez (Tract. de leg., ed. C. Berton, Opera omnia, V, Paris 1856, l. III, chap. 30, n. 6) indeed asserts that the human legislator would exceed his powers if he obliged someone at any price despite any difficulty. Such binding force of the law is not necessary for the common good; and although at times the extraordinary obligation is neither expressly imposed nor beyond the legislator’s powers, if it is excessively grave and burdensome, it is considered to stand above the legislator’s will and therefore not to be binding (v. EPIXEIA; EQUITA).
An exception to all this is the case in which observance of the human law is required for the protection of the common good or to avert a common evil; a law, even a human one, binds, even with danger to life, when its violation is demanded by hatred of the faith or contempt for religion; grave i., therefore, must not be intrinsically joined to the very nature of the observance of the law.
Moreover, the gravity of the i. must also be related to the common good that the law is intended to protect. Therefore, with the utmost prudence, it must be examined whether, in each individual law, there is a proportion between the gravity of the i. and the necessity or public utility that calls for observance of the law.
For the most part, a more serious reason is required in order to be excused from observing a negative law than a positive law, and a divine law than a human law. Thus, the nature of the law must also be kept in mind, in addition to what has been said above. Therefore, no i. or difficulty, however grave, excuses one from observing a negative natural law, not even in the presence of danger of death. A negative natural law, in fact, always binds, since it prohibits an intrinsically evil action, e.g., blasphemy, false testimony, etc.
Grave i. excuses one from a positive natural law and from a positive divine or human law, provided that the i. is proportionate to the gravity of the law, whence the saying “lex non obligat cum gravi incommodo,” and provided that the violation does not constitute an offense against God or religion, to the detriment of the Church, to the harm of the community, or to the spiritual harm of others (can. 2205 §§ 2 and 3). Consequently, in these cases, taking into account the gravity of the matter and the end that must be protected by the law, as well as the grave scandal that could result from failure to observe it, one is not excused even in the presence of danger of death or of any other kind, as has been exemplarily demonstrated by the very numerous Christian martyrs from the first persecutions under the Roman emperors down to our own day.
Moreover, the i. is excluded when it is connected with an office that presupposes it and that is accepted with all the difficulties it entails: e.g., a parish priest who must celebrate Holy Mass very late is not excused, apart from the granting of a dispensation, from observing the Eucharistic fast.
The i., besides being involuntary, may also be voluntary, provided that it is not directly and deliberately brought about in order to violate the law. These moral principles also find application in canon penal law, where grave i. is an extenuating circumstance affecting imputability (can. 2205 § 3) and exempting from every latae sententiae penalty, provided that this can be demonstrated in the external forum (can. 2218 § 2).
From grave i., or moral impotence, also called relative impotence—that is, dependent upon circumstances not of absolute value but pertaining to the person’s status, place, time, etc., which has been considered up to this point—moral-legal doctrine distinguishes an absolute impotence that always excuses one from observing the law, according to the well-known moral principle: “ad impossibilia nemo tenetur.”