C.18b - Case of the elephant in the china shop

I. To limit myself to the brief account of the facts, the following can be said about the responsibility of A. and B. for the breakage of the precious Chinese vase.

II. As to whether A. performs a human conduct, we can affirm that there is data to affirm self-control. Indeed, giving a push is an expression that in everyday language we reserve for intentional behaviour, moved by a purpose, which evidences the presence of volition in the subject. Thus, A. would act with self-control. It is different for B., because an external, physical and uncontrollable factor operates on him, which we can qualify as an irresistible force. Such a factor is unavoidable for B., though not for A. But for B. it is enough of a factor to deprive him of self-control and therefore of volition. We do not have data to overcome this defect of imputation and proceed to impute in an extraordinary way (he has not provoked the force operating on him). At final, B. does not carry out a conduct in the criminal law sense. Thus, for B. the case would end here.

As far as A.'s intervention is concerned, we must ask ourselves whether his conduct is also typical. Leaving aside the possible criminalisation of the conduct as coercion or slight vexation, we now focus on that of pecuniary damage to the thing (precious Chinese vase). The first requirement, that of causation, is fulfilled, given that, once A.'s push is mentally removed, falling on the object disappears. Moreover, this factor constitutes a typically relevant risk for the purposes of the offence of damage, as it involves an unquestionable damage to property in an object whose value depends to a large extent on it being preserved intact; and there is no other factor to which we can attribute the fracture of the vase: it was not already fractured, nor in an inappropriate and risky place, but in a exhibition, and as these objects are usually found in exhibitions (exposed, but not abandoned). Furthermore, the amount of 400 euros is exceeded, given the characteristics of the object. 400 euros, given the characteristics of the object. His conduct is subject goal of the offence of damage to property (art. 263).
As to whether it can also be subjectively imputed, there is reason to believe that the risk he deploys with the push is represented, as corresponds to conduct of this nature class, as it involves leaving his passivity and suddenly and effectively exerting force on something that has changed to a different state. This would only be possible if the efficacy of his action is represented: to be quick, accurate, direct and violent. All of this demands the exercise of potentialities that require knowledge of one's own capacity and the position and vulnerability of the objects (of the vase and - it is worth the qualifier - of the pushed). Therefore, his conduct is also subjectively typical.

There is nothing to cast doubt on the unlawfulness of his conduct, nor on his guilt.

Finally, there are no factors conditioning punishability (no average kinship between A. and the owner of the vase: art. 268).

III. At final, A. is liable for an offence of criminal damage, punishable by a fine of 6 to 24 months.