Negligence
A negligent offence requires three elements:
- Breach of the objective duty of care
- A result
- Objective imputation of the result to the breach
The duty of care has two dimensions: an internal duty to perceive danger, and an external duty to act accordingly.
Spain uses a numerus clausus system. Under Article 12 of the Code, negligent acts are punished only when expressly stated by law.
The Code distinguishes between degrees of fault:
- gross negligence
- less grave negligence
Professional negligence breaches calling-specific duties and adds disqualification penalties.
Preterintentionality means intending a lesser harm but causing a greater one. We treat this through concurrence rules: intent for the base act, negligence for the outcome.
Omission
| Pure omission | Commission by omission | |
|---|---|---|
| Structure | Failing to act | Failing to prevent a result |
| Result required | No | Yes |
| Perpetrator | Anyone | Guarantor only |
| Example | Failure to render assistance | Homicide via Article 11 |
Under Article 11 CP, omission must be equivalent to active causation. It requires a breach of a special legal duty based on:
- A specific legal or contractual obligation
- Prior risk-creating conduct
Causation here is strictly hypothetical. We ask if the omitted action would have avoided the result with near certainty.
Common pitfall: assuming that ease of prevention creates guarantor status. Without a specific legal duty, failing to intervene is only pure omission, not homicide.