The Law of Obligations: Essays in Celebration of John Fleming

By Peter Cane; Jane Stapleton | Go to book overview

7
Responsibility in Crime, Tort, and Contract for the Unforeseeable Consequences of an Intentional Wrong: A Once and Future Rule?

James Gordley*


Responsibility in Crime and Tort

THE MODERN PROBLEM

Suppose A accidently shot B when aiming at C. It has seemed to many people that A should be held criminally and civilly responsible for shooting B. Yet modern jurists have trouble explaining why. They recognize two types of responsibility based on fault. A person is responsible for causing harm intentionally or negligently. In the example just given, the defendant's objective was not to cause the harm he did. So it seems odd to say he caused it intentionally. Moreover, he may not have been negligent. He may have used due care to avoid shooting a bystander.

In Anglo-American criminal law, A is held responsible by invoking a doctrine known as 'transferred intent' or 'transferred malice'. A's intention to kill C is said to 'transfer' to the death of B.1 In Italy, article 82 of the Criminal Code provides that one who mistakenly harms a different person than he intended will be held responsible as though his intention had not miscarried.2

____________________
*
I would like to thank Stefano Mechelli for helping with my research. I am especially grateful to John Fleming for encouraging me to take an historical and comparative approach to modern problems.
1
As the Model Penal Code puts it, the requirement that the defendant have acted 'purposefully' is satisfied even if the actual result is different only in that a different person or property is affected. Model Penal Code § 2.03(2)(a).
2
Italian Criminal Code (Codice penale) art. 82.

-175-

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