# Negligence and Omission Law I · Foundations of Criminal Law and the Theory of the Offence · https://tryals.app/learn/law-i/negligence-and-omission ## 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. ## Practice questions 10 of this lesson's 14 practice questions, with answers. The full set is in the app. ### 1. A strong swimmer watches a stranger drown in shallow water and does nothing. Why is this not homicide by omission, even though acting would certainly have saved the man? A. Homicide requires positive action; omissions are punished purely through specific offences B. Liability requires a legal duty to prevent harm, which mere capability does not establish C. Causation cannot be established because the bystander played no role in causing the danger D. Without contractual payment, the swimmer cannot breach an external objective duty of care **Answer:** B. Liability requires a legal duty to prevent harm, which mere capability does not establish **Why:** Because commission by omission needs a **position of guarantor**, and capacity to help is not one. Article 11 requires a special legal duty whose breach is equivalent to causing the result. What the swimmer does commit is the pure-omission offence of failing to render assistance, which exists precisely to cover the person who has no guarantor duty and could easily have acted. Page: https://tryals.app/practice/law-i/negligence-and-omission/a-strong-swimmer-watches-a-stranger-drown-in-shallow-water-and-does ### 2. Complete the account of negligence and omission. **Answer:** A result offence is committed by omission only where the failure to prevent it, in breach of a special legal duty, is **equivalent** to causing it in the sense of the statutory text. The duty of care has an internal dimension, to notice the danger, and an **external** dimension, to behave accordingly. A person under a special duty to prevent a result occupies the position of **guarantor**. Article 11 treats prior conduct by the omitting person that created a risk, known as **injerencia**, as a source of that duty. **Why:** The first blank carries the whole restriction. **Equivalence** is a demanding standard: it is not enough that the person could have prevented the result, or even that they had some duty; the failure must be comparable to causing the result in the sense the statute intends. That is what stops Article 11 from swallowing every case of standing by. Page: https://tryals.app/practice/law-i/negligence-and-omission/complete-the-account-of-negligence-and-omission ### 3. Article 12 of the Criminal Code punishes negligent acts and omissions only where the law expressly so provides. **Answer:** True **Why:** **True**, and this is the *crimina culposa* system. It replaced the older model in which negligence was a general form available for any offence, and the practical consequence is stark: where the Code provides no negligent version, gross negligence producing the very harm the offence describes is not punishable under that offence at all. Page: https://tryals.app/practice/law-i/negligence-and-omission/article-12-of-the-criminal-code-punishes-negligent-acts-and-omissions ### 4. How many dimensions does the objective duty of care classically have? **Answer:** 2 **Why:** **Two**: the internal duty to notice the danger, and the external duty to behave as noticing it requires. The split explains cases that otherwise look inconsistent. Someone who never realised there was a risk can still be negligent, because the first duty was to realise it, and inattention is a breach in its own right rather than an excuse. Page: https://tryals.app/practice/law-i/negligence-and-omission/how-many-dimensions-does-the-objective-duty-of-care-classically-have ### 5. Arrange the steps in analysing a possible commission by omission, in order. **Answer:** 1. Identify a result offence that the omission is said to have produced 2. Establish that the person occupied a position of guarantor 3. Identify the source of that duty among those Article 11 names 4. Ask whether the required action would have prevented the result with a probability bordering on certainty 5. Ask whether the failure is equivalent to causing the result in the sense of the statute **Why:** The last step is the one most often skipped, and it is the one Article 11 puts at the centre. Everything before it can be satisfied — a duty, a source, a certain preventive effect — and the case still fails if the failure is not comparable to causing the result in the sense the statute intends. Equivalence is a substantive filter, not a summary of the earlier steps. Page: https://tryals.app/practice/law-i/negligence-and-omission/arrange-the-steps-in-analysing-a-possible-commission-by-omission-in ### 6. Match each element of the negligent offence to what it requires. **Answer:** - Internal duty of care → To notice the danger that the situation presents - External duty of care → To behave in the way that noticing the danger requires - Result → The harm the offence describes must actually have occurred - Objective imputation → The result must be the realisation of the very risk the breach created **Why:** The fourth element is why negligence is not simply carelessness plus bad luck. A driver who was texting and hits a pedestrian who ran out where nobody could have stopped has breached the duty and caused nothing imputable: the risk that materialised was not the one the texting created. Page: https://tryals.app/practice/law-i/negligence-and-omission/match-each-element-of-the-negligent-offence-to-what-it-requires ### 7. In what year did the reform that abolished the general category of slight negligence and the faltas come into force? **Answer:** 2015 (within ±1) **Why:** **2015.** The same reform abolished the *faltas*, converted part of their content into *delitos leves*, introduced reviewable permanent imprisonment and reworked the corporate liability regime. It is the most consequential recasting of the 1995 Code so far, which is why any citation to the Code needs a date attached to it. Page: https://tryals.app/practice/law-i/negligence-and-omission/in-what-year-did-the-reform-that-abolished-the-general-category-of ### 8. Article 11 of the Criminal Code lists a close family relationship as one of the sources of the duty to prevent a result. **Answer:** False **Why:** **False.** Article 11 names a specific legal or contractual obligation to act, and prior conduct by the omitting person that created a risk to the protected good. Family cases are handled through a specific legal duty where one exists, not through the relationship as such, a distinction that decides real cases and is very commonly misremembered. Page: https://tryals.app/practice/law-i/negligence-and-omission/article-11-of-the-criminal-code-lists-a-close-family-relationship-as ### 9. A lifeguard is on duty when a swimmer drowns. Arrange the events in the order the court reconstructs them. **Answer:** 1. The lifeguard is employed and takes up the post at the beach 2. A swimmer gets into difficulty within sight of the post 3. The lifeguard sees the difficulty and remains seated 4. The swimmer drowns 5. The court asks whether entering the water would have prevented the death with a probability bordering on certainty **Why:** The first event is doing the legal work, and it happens before any of the drama. Taking up the post is what creates the specific duty; without it the same inaction by the same person on the same beach is at most a failure to render assistance. The last step is the peculiarity of omission: since nothing was done, causation has to be established by asking what would have happened if it had been. Page: https://tryals.app/practice/law-i/negligence-and-omission/a-lifeguard-is-on-duty-when-a-swimmer-drowns-arrange-the-events-in ### 10. Preterintentionality involves intending a lesser harm whilst causing a greater one. How does the criminal law resolve this conflict in the structure of the offence? A. By resolving the entire chain of events under gross negligence rules B. By treating the whole act as a single, aggravated intentional crime C. By imputing intent to the base act and negligence to the outcome D. By punishing only the intended harm whilst ignoring the final result **Answer:** C. By imputing intent to the base act and negligence to the outcome **Why:** Preterintentionality is not a single unified intent that absorbs the outcome, nor is it reduced entirely to negligence. Concurrence rules apply separate standards of liability to the initial conduct and the unintended consequence, preventing disproportionate outcomes. Page: https://tryals.app/practice/law-i/negligence-and-omission/preterintentionality-involves-intending-a-lesser-harm-whilst-causing