Part II. Fuller Exposition

A fuller exposition of delict consists in a fuller explanation of the principal element by which delict is constituted, namely, imputability.

I. The formal causes of imputability are: 1° the malice of the delinquent; 2° the fault of the delinquent, whether in ignorance of the law or in omission of the diligence required so that the law may be observed (canon 2199).

1. Malice here is the deliberate will of violating the law; to it is opposed, on the part of the intellect, defect of knowledge, and on the part of the will, defect of liberty. Once the external violation of law has been posited, malice is presumed in the external forum until the contrary is proved (canon 2200).

Corollary I. Those who actually lack the use of reason are incapable of delict (canon 2201, § 1). The reason is that deliberation is absent.

Corollary II. Those habitually insane, although at times they have lucid intervals or seem sane in certain reasonings or acts, are nevertheless presumed incapable of delict (canon 2201, § 2). The reason is that deliberation in them is presumed to be absent until it is proved to be present.

Corollary III. A delict committed in voluntary drunkenness does not lack some imputability (canon 2201, § 3). This is clear if drunkenness does not wholly take away the use of reason; but if it wholly takes it away, the delict is imputed if it was foreseen at least in some measure (vol. I, n. 60). Besides, the imputability of a delict committed in voluntary drunkenness is less than when the same delict is committed by one who is fully master of himself, unless, however, drunkenness was sought precisely for perpetrating or excusing the delict. But when law is violated in involuntary drunkenness, imputability is wholly absent if drunkenness wholly takes away the use of reason; it is diminished if it takes it away only in part. The same should be said of other similar disturbances of mind (canon 2201, § 3), for example from morphine.

Corollary IV. Weakness of mind diminishes the imputability of a delict, but does not wholly remove it (canon 2201, § 4).

2. Ignorance of the violated law influences the imputability of the transgression in this way:

a) Inculpable ignorance removes the imputability of the transgression and consequently the delict (canon 2201, § 1).

b) Culpable ignorance diminishes imputability more or less according to the culpability of the ignorance itself (cited canon). Nevertheless, concerning affected ignorance it is disputed whether it increases or diminishes imputability (vol. I, n. 32).

Note 1. Ignorance of the penalty alone does not remove the imputability of the delict, but diminishes it somewhat (canon 2202, § 2).

Note 2. Those things which are established concerning ignorance, whether of the law or of the penalty, also hold concerning inadvertence¹ and concerning error² (canon 2202, § 3); likewise concerning ignorance of fact, for instance if someone strikes a cleric whom he certainly or probably holds to be a layman.

Note 3. Ignorance, or inadvertence or error concerning law or penalty or fact, is generally not presumed (canon 16, § 2).

3. Omission of due diligence. If someone has violated the law from omission of due diligence, the imputability is diminished in the manner to be determined from the circumstances by a prudent judge; but if he foresaw the matter and nevertheless omitted the cautions for avoiding it which any diligent person would have used, the fault is proximate to malice (canon 2203, § 1). Moreover, a fortuitous case which cannot be foreseen, or which when foreseen cannot be met, exempts from any imputability (canon 2203, § 2).

¹ It is actual ignorance in one who enjoys habitual knowledge.

² It is positive ignorance, or ignorance joined with the admission of what is false.

II. The causes modifying imputability are enumerated by the Code:

1. Minority. Minor age, unless something else is established, diminishes the imputability of a delict, and the more so the closer it approaches infancy (canon 2204). Moreover, moral persons (canon 100, §§ 1 and 2) are equated with minors also as regards imputability (cited canon, § 3).

2. Physical force which takes away every faculty of acting altogether excludes delict (canon 2205, § 1).

3. Grave fear, even only relatively grave, necessity, and even grave inconvenience, usually wholly remove delict if there is question of merely ecclesiastical laws. The said causes indeed diminish the imputability of the delict but do not remove it if the act is intrinsically evil or tends toward contempt of the faith or ecclesiastical authority or toward damage of souls (canon 2205, §§ 2 and 3).

4. Just defense. The cause of legitimate defense against an unjust aggressor, if due moderation is observed, wholly removes delict; otherwise it only diminishes imputability, as also does the cause of provocation (canon 2205, § 4), namely, one who provokes the aggressor also exceeds the moderation of defense. Besides, in excess of defense, not so rarely all fault is lacking.

5. Passion, if it has been voluntarily and deliberately excited or nourished, rather increases imputability; otherwise it diminishes it more or less according to the diverse heat of passion; and it wholly removes imputability if it precedes and impedes every deliberation of mind and consent of will (canon 2206).

6. Besides other aggravating circumstances,¹ a delict is increased: 1° according to the greater dignity of the person who commits the delict or who is offended by the delict; 2° from abuse of authority or office for perpetrating the delict (canon 2207).

7. Falling again into delict. A recidivist in the sense of the law is one who, after condemnation, again commits a delict of the same kind and in such circumstances of matters and especially of time that his pertinacity in evil will can prudently be conjectured (canon 2208, § 1). Moreover, one who has offended several times, even in a different kind, increases his culpability (canon 2208, § 2).

¹ Therefore the enumeration is not taxative.

III. Imputability of cooperators. In order that cooperation be canonically imputed, some malice or fault and some external influence upon the external fact of the delict are required. Concerning malice and fault, let the things said above be applied; concerning external influence, it must be noted that this is physical or moral, necessary or non-necessary, principal or accessory, positive or negative. Moreover, according to the varying influence upon the delict, the imputability of cooperators is varied as follows:

1. Those who with a common plan of delinquency physically concur together in a delict are all held guilty in the same way, unless the circumstances increase or diminish the culpability of someone (canon 2209, § 1).

2. In a delict which by its nature demands an accomplice, as for example a duel, each party is culpable in the same way, unless something else appears from the circumstances (canon 2209, § 2).

3. Of themselves, both the one mandating, who is the principal author of the delict, and others who induce to the consummation of the delict by persuading, consenting, or morally influencing in some other way, or who concur in this in any way whatever, for instance by physically cooperating, contract imputability not less than the executor of the delict, if the delict would not have been committed without their work (canon 2209, § 3), that is, if their influence was necessary.

4. If the influence of the aforesaid persons was not necessary but only rendered the delict easier, as one which would have been committed even without their concurrence, it carries with it lesser imputability (canon 2209, § 4).

5. One who has fully withdrawn his influence in perpetrating the delict by an opportune retraction is freed from all imputability, even if the executor nevertheless perpetrated the delict for other causes proper to himself; if he has not withdrawn it fully, retraction diminishes culpability but does not remove it (canon 2209, § 5). It is said "by an opportune retraction," namely one which is made at an opportune time and in an efficacious way. It is disputed whether retraction reinforced by arguments sufficiently destroys the influence of clothed counsel. It is probably affirmed (vol. I, n. 1000); wherefore in the case the executor must be judged to offend for causes proper to himself. But if the influence cannot be withdrawn unexpectedly, nevertheless an inculpably inefficacious retraction removes culpable participation in the consummated delict and consequently the imputability of this; but the culpable attempt of the delict remains (cf. n. 851), and, if the case bears it, some imputability for the damage and scandal which followed (canons 2213, § 3; 2235).

6. One who concurs in a delict only by neglecting his office is held by imputability proportioned to the obligation by which he was bound to impede the delict by his office (canon 2209, § 6).

7. Praise of a perpetrated delict, participation in its fruits, concealment and harboring of the delinquent, or other acts following upon a delict already fully completed: 1° can constitute new delicts, if namely they are punished by a penalty in law; besides, 2° they carry with them the imputability of the perpetrated delict if agreement had been made with the delinquent concerning those acts before the delict (canon 2209, § 7).