contravention is against some provision the observance whereof the latter was bound to ensure and the contravention could have been prevented by his diligence".
This provision is identical, word for word, with Art. 60 of the Italian Criminal Code of 1889.
Upon an analysis of the provision in question it appears clear that no fewer than three conditions must be satisfied in order that it may be applied. These conditions are
a) That the person committing the contravention be subject to the authority, direction or care of another person. Such authority, direction or care may arise from family relationship, or from relationship of employment, custody tuition, etc., or under the provision of a law or regulation. And, as the law makes no distinction, it is immaterial whether the authority, direction or care be permanent or merely temporary, provided, of course, it subsisted at the time the contravention was committed. b) In the second place it is essential that the contravention be against a provision of law which it was the duty of the person having authority over or the direction or care of the contravener, to see that it was observed. The reference here is necessarily and obviously to some special duty, particularly inherent in the office, situation, undertaking or trade held or carried on by the person having the authority, direction, or care as aforesaid; and not to the duty, moral if not always legal, generally incumbent upon all citizens to ensure the observance of the law. c) Finally, in order that liability may attach to the person having authority over or the direction or care of the contravener, it must be made to appear that the former could have prevented the commission of the contravention by the use of due care. This means that the provision under discussion will not apply if the contravention was committed by the subordinate in such circumstances that the person having the authority, etc., was in the impossibility of preventing it by the exercise of reasonable care.
So that, what the law punishes under this section is really the negligence of the superior in failing to prevent the breach of a particular provision of law, which he had a special duty to cause to be complied with. The law does not punish the superior for the wrong of his subordinate: but punishes the subordinate himself for his wrongful act or omission constituting the contravention, and punishes the superior for his own wrong in failing to take care to prevent the contravention. "Qui, dunque, si tratta di responsabilità non per culpa aliena, bensi’ per culpa propria in vigilando”178. 178
Florian, op. cit., Vol. I, Pt. I, p. 349 Page 114 of 276