NECESSITÀ, STATO DI - Enciclopedia Cattolica, Vol. VIII, p. 1015

Machine translation of the 1948–1954 Italian original. The original text is authoritative.

NECESSITY, STATE OF

### I. ITALIAN LAW

The state of necessity is regulated in the Italian legal system by both criminal and civil law. The criminal legislator conceives the state of necessity as a cause for the exclusion of punishability (Penal Code, art. 54); the civil legislator links compensation to the damage caused in a state of necessity. The legal definition of the state of necessity must be constructed on the basis of these two norms.

According to some writers, only psychological reasons explain the non-punishability of an act committed in a state of necessity: it is then conceived as a force acting on the agent's mind, depriving him of the freedom to determine himself and act. However, others have observed that there are men who, even in the most serious circumstances of life, retain coolness and careful judgment: consequently, the freedom to determine oneself and act may or may not be taken away by the state of necessity; whereas, on the other hand, the objective unlawfulness of the act is always suppressed by II.
If this latter proposition is accepted, it must be concluded that he who acts in a state of necessity is exempt not only from punishment but also from the criminal norm: his act assumes the configuration of an act that is not prohibited. The condition of non-punishability therefore means exclusion of the crime, that is, of the penal unlawfulness of the act committed under necessity. In this regard, it has also been observed that, since article 54 of the Penal Code is found under the title of the crime, it is evident that the state of necessity must be related to unlawfulness as a cause for its exclusion.

The thesis of the exclusion of unlawfulness finds further strong support in the fact that the legislator is aware of directing his norms at human beings who, in the majority, are of average virtue and therefore cannot be bound to a behavior that could be described as heroic; so that, when the objective requirements of the state of necessity are met, the empire of the legal norm ceases. There would thus be positive recognition of the ancient maxim *necessitas non habet legem*.

The first paragraph of article 54 of the Penal Code is now quoted verbatim:

"One who has committed an act under the necessity of saving himself or others from the present danger of serious harm to the person, which danger was not voluntarily caused by him and was not otherwise avoidable, is not punishable, provided that the act is proportionate to the danger."

This legal notion of the state of necessity has largely been adopted by the civil legislator: in fact, article 2045 of the Civil Code provides:

"When one who has committed a harmful act was compelled thereto by the necessity of saving himself or others from the present danger of serious harm to the person, and the danger was not voluntarily caused by him nor was otherwise avoidable, the person suffering the damage is entitled to compensation, the amount of which is left to the equitable assessment of the judge."

While in criminal law the state of necessity exempts from sanction, in civil law it does not exclude the obligation to provide a form of reparation (compensation). Should it be inferred from this that civil unlawfulness subsists? Although various writers affirm this, it must be held that the argument that the legislator cannot bind men to heroic behavior retains its validity even in the presence of article 2045 of the Civil Code, which does not alter the juridical nature of the act performed in a state of necessity: this act, and the damage resulting therefrom, remains non-unlawful. Despite its non-unlawfulness, the damage in question nonetheless gives rise to a reaction, characterized by the attribution to the judge of a special power of equitable assessment. In conclusion, damage caused in a state of necessity falls among those exceptional cases in which reparation of damage is not conditioned upon unlawfulness.

BIBL.:** G. Tedeschi, *Legittima difesa, stato di necessità e compensazione delle colpe*, in Riv. dir. comm., 1931, pp. 738 ff.; A. De Cupis, *Natura giuridica dell'atto necessitato*, in Riv. crit. rept. civ., 1939, pp. 161 ff. (with extensive bibliography); E. Contieri, *Lo stato di necessità*, Milan 1939.

Adriano De Cupis

### II. CANON LAW

The *Codex Iuris Canonici* also establishes that the state of necessity, in the majority of cases, completely destroys the nature of a delict in the action performed by the person as a consequence thereof (can. 2205 § 2); whereas it does not destroy it (though it diminishes imputability) when the action is intrinsically evil (abortion, apostasy, blasphemy), or results in open contempt for the faith (joining societies condemned by the Church, contracting marriage between the baptized before a non-Catholic minister), or of ecclesiastical authority (conspiracy against the Pope and the hierarchy, recourse to secular power against the power of the Church), or is detrimental to souls (non-residence of the parish priest in his parish, administration of sacraments to the unworthy: can. 2205 § 3).

Likewise, the *Codex Iuris Canonici* admits that an action otherwise prohibited and rendered lawful and permitted by the state of necessity may be freely performed not only for one's own benefit but also for the benefit of others, members of one's family, or even strangers.

BIBL.:** G. Sole, *De delictis et poenis*, Rome 1920, nn. 32-36; F. Roberti, *De delictis et poenis*, ibid., pp. 153-57; G. Michiels, *De delictis et poenis*, I, Lublin 1934, pp. 190-200, 202-12; Wernz-Vidal, nn. 90, 92-93; Matteo da Coronata, *Instituti*, 1926, 173.