Chapter VIII: On Delict, Quasi-Delict, and Fault to Be Furnished

I. On Delict. ¹ 1. Civil delict must be carefully distinguished from penal or criminal delict. Penal delict is defined by canon 2195, § 1: "An external and morally imputable violation of a law, to which a sanction has been added." The sanction can be defined either perfectly, as if for theft a penalty of six months' prison is established, or less perfectly, as if, for the various circumstances of the case, the penalty is permitted to be determined by the judge between a maximum and minimum limit; and it can also, at least in the canonical forum, be fully committed to the judgment of the judge, as when it is said: "let him be punished with suitable penalties." - Concerning penal delict, this holds: no penalty without law. According to this, the Code, c. 6, 5°, declared abrogated all penalties of which no mention is had in the Code.

2. But civil delict is every illicit and damaging fact committed with the intention of harming.

An illicit fact is required, because "no one seems to act by deceit who uses his own right" [Law 55, Dig. De regulis iuris (L, 17)].

A fact can be damaging because of emergent damage, or a positive detriment by which someone begins to have less than he had; and because of ceasing gain, by which someone has less than he would have had without the illicit fact.

Damage can be of the material order, whether it affects a thing or the body, so that it is estimable by a price, and it can be of a superior order, in reputation, in the soul, in affections, etc. It is certain that every economic damage is at least to be compensated with money. Sometimes also damage of a superior order can be repaired in its own order: disease by recovered health, reputation by an efficacious retraction. But does moral damage, as such, give place to pecuniary reparation? The matter is not so settled among jurists. Yet tribunals are accustomed also to establish that certain moneys are to be paid for damages of the body itself as such, or for damages of the moral order.

The intention of harming supposes a voluntary fact commanded by a deceitful or malicious will.

But reparation of damages on account of delict can be sought either from a contentious tribunal, and then as the principal object of the suit, or also from a criminal tribunal, as an accessory of the criminal process. By the name civil party in a criminal cause is called the private person who seeks such reparation of damages.

II. On Quasi-Delict. Quasi-delict excludes the intention of harming, but arises from necessary diligence (positive or negative) having been omitted, which, had it been applied, the damage would not have been inflicted.

Diligence is imposed either immediately concerning the very things to be preserved, or concerning animate causes which can beget damage: animals, children, persons whose labor had been hired.

The quasi-delict itself supposes a fact voluntary in this sense, that by greater caution or attention the damage could have been avoided. But defect of advertence does not take away quasi-delict.

¹ On the whole argument of this chapter, cf. Pacifici Mazzoni IV, p. 218 ff., 344 ff.; and Colin et Capitant, II, 360-403.

III. On Fault to Be Furnished. 1. Fault is distinguished as theological and juridical. Theological fault is the sin itself by which God is offended; juridical fault consists in the omission of diligence due according to the laws. This fault can be broad or gross: omission of common diligence, i.e. the diligence customarily applied by all; slight: omission of the diligence which an alert man is accustomed to apply, which can be divided into slight fault in the abstract and in the concrete, according as abstraction is made from the person who is blamed or not; very slight: omission of exquisite diligence.

A distinction of grades of this kind is found in every law. Thus, in England, Slater, A manual, I, 409, alleging Chitty, The Laws of Contracts, distinguishes ordinary neglect, gross neglect, slight neglect.

From delict or quasi-delict, the furnishing of very slight fault is owed. From contract the general rule is that slight fault in the abstract is furnished. This obligation is increased or diminished according as the contract is in favor of the debtor or of the creditor, or according as the contract itself has been imposed by necessity: as in a "miserable" deposit, i.e. one which had to be made from an unforeseen event.

In the Canadian Code Q., a contract never imposes more than the diligence of a good father of a family.

A fortuitous case is not furnished of itself, unless a delict has intervened, or the debtor has been in delay (German Code, 287). The German Code treats this argument more fully than the rest, arts. 276-292 and 823-853. Cf. also Swiss Code of Obligations, arts. 41-61.

In the canonical forum, a fortuitous case is not furnished; however, the imputation of omitted diligence is committed to the prudent judgment of the judge (c. 2203, § 2), almost as in art. 43 of the Swiss Code of Obligations. At the same time, however, even in ecclesiastical matter, just civil laws concerning contracts are to be observed. Therefore an ecclesiastical judge will be able and obliged to urge those laws.

In the forum of conscience this perpetual rule can be proposed: before the sentence of the judge, a grave obligation of furnishing fault requires, besides grave matter, grave theological fault, unless the furnishing of a fortuitous case or of slight fault has been formally promised. But the gravity itself of fault in a contract depends on the diligence which, expressly or tacitly, greater or lesser according to the various contract, was promised, and on its voluntary omission in more or less notable matter. But the diligence which is imposed by civil law is not yet judged to have been promised by the parties. The circumstances are to be consulted. And in general, if, conscious of danger, in dangerous actions you omit that diligence of precaution which men of the same condition are commonly accustomed to have, you sin gravely (unless perhaps you had already determined to receive the damages upon yourself) and are held for the damages which follow. In doubt concerning fault, you are not held.

After the sentence of the judge, the money which has been imposed on account of mere juridical fault is owed in conscience, provided this fault at least has truly been committed.

Therefore, if in fact the diligence was applied for whose omission someone has been condemned to repair damages, that sentence, inasmuch as it is founded in an error of fact, begets no obligation of conscience, so that after its coerced execution there is place for occult compensation.

I. Civil delict is an illicit and damaging fact committed with the intention of harming; quasi-delict is the same fact, without the intention of harming, committed with juridical fault.

II. Fault to be furnished. According as exquisite diligence, or that of an alert man, or common diligence is required, the fault to be furnished is called very slight, slight, gross.

Damages of omitted or delayed execution, or of another's damaged thing, in the internal forum, always, before the sentence of the judge, are estimated according to theological fault: this must be grave in order that a grave obligation, even in grave matter, arise; but in the external civil forum, they are estimated according to juridical fault, or the omission of diligence which positive law imposes.

From delict or quasi-delict, very slight fault is juridically to be furnished. A fortuitous case is generally not furnished.

In the canonical forum, imputation is made according to the prudent estimation of the judge, unless the civil law itself must be applied.